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Justice Burger
| 1,984 | 12 |
majority
|
Press-Enterprise Co. v. Superior Court of Cal., Riverside Cty.
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https://www.courtlistener.com/opinion/111063/press-enterprise-co-v-superior-court-of-cal-riverside-cty/
|
privacy, a trial judge must at all times maintain control of the process of jury selection and should inform the array of prospective jurors, once the general nature of sensitive questions is made known to them, that those individuals believing public questioning will prove damaging because of embarrassment, may properly request an opportunity to present the problem to the judge in camera but with counsel present and on the record. By requiring the prospective juror to make an affirmative request, the trial judge can ensure that there is in fact a valid basis for a belief that disclosure infringes a significant interest in privacy. This process will minimize the risk of unnecessary closure. The exercise of sound discretion by the court may lead to excusing such a person from jury service. When limited closure is ordered, the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror's valid privacy interests. Even then a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment. *513 The judge at this trial closed an incredible six weeks of voir dire without considering alternatives to closure. Later the court declined to release a transcript of the voir dire even while stating that "most of the information" in the transcript was "dull and boring." Those parts of the transcript reasonably entitled to privacy could have been sealed without such a sweeping order; a trial judge should explain why the material is entitled to privacy. Assuming that some jurors had protectible privacy interests in some of their answers, the trial judge provided no explanation as to why his broad order denying access to information at the voir dire was not limited to information that was actually sensitive and deserving of privacy protection. Nor did he consider whether he could disclose the substance of the sensitive answers while preserving the anonymity of the jurors involved. Thus not only was there a failure to articulate findings with the requisite specificity but there was also a failure to consider alternatives to closure and to total suppression of the transcript. The trial judge should seal only such parts of the transcript as necessary to preserve the anonymity of the individuals sought to be protected. IV The judgment of the Court of Appeal is vacated, and the case is remanded for proceedings
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Wilkie v. Robbins
|
https://www.courtlistener.com/opinion/145705/wilkie-v-robbins/
|
The Court correctly concludes that does not supply a cause of action in this case. I therefore join its opinion. I write separately because I would not extend even if its reasoning logically applied to this case. " is a relic of the heady days in which this Court assumed common-law powers to create causes of action." Correctional Services Accordingly, in my view, and its progeny should be limited "to the precise circumstances that they involved." at Justice GINSBURG, with whom Justice STEVENS joins, concurring in part and dissenting in part. Bureau of Land Management (BLM) officials in Wyoming made a careless error. They failed to record an easement obtained for the United States along a stretch of land on the privately owned High Island Ranch. Plaintiff-respondent Frank Robbins purchased the ranch knowing nothing about the easement granted by the prior owner. Under Wyoming law, Robbins took title to the land free of the easement. BLM officials, realizing their mistake, demanded from Robbins an easement for which they did not propose to payto replace the one they carelessly lost. Their demand, one of them told Robbins, was nonnegotiable. Robbins was directed to provide the easement, or else. When he declined to follow that instruction, the BLM officials mounted a seven-year campaign of relentless harassment and intimidation to force Robbins to give in. They refused to maintain the road providing access to the ranch, trespassed on Robbins' property, brought unfounded criminal charges against him, canceled his special recreational use permit and grazing privileges, interfered with his business operations, and invaded the privacy of his ranch guests on cattle drives. Robbins commenced this lawsuit to end the incessant harassment and intimidation he endured. He asserted that the Fifth Amendment's Takings Clause forbids government action calculated to acquire private property coercively and cost-free. He further urged that federal officials dishonor their constitutional obligation when they act in retaliation for the property owner's resistance to an uncompensated taking. In support of his claim for relief, Robbins relied on The Court *2609 recognizes that the "remedy" to which the Government would confine Robbinsa discrete challenge to each offending action as it occursis inadequate. A remedy so limited would expose Robbins' business to "death by a thousand cuts." See ante, at 2600 (quoting Brief for Respondent 40). Nevertheless, the Court rejects his claim, for it fears the consequences. Allowing Robbins to pursue this suit, the Court maintains, would open the floodgates to a host of unworthy suits "in every sphere of legitimate governmental action affecting property interests." Ante, at 2604. But this is no ordinary case
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Wilkie v. Robbins
|
https://www.courtlistener.com/opinion/145705/wilkie-v-robbins/
|
interests." Ante, at 2604. But this is no ordinary case of "hard bargaining," ib or bureaucratic arrogance. Robbins charged "vindictive action" to extract property from him without paying a fair price. He complains of a course of conduct animated by an illegitimate desire to "get him." That factor is sufficient to minimize the Court's concern. Cf. Village of (citations and internal quotation marks omitted). Taking Robbins' allegations as true, as the Court must at this stage of the litigation, the case presents this question: Does the Fifth Amendment provide an effective check on federal officers who abuse their regulatory powers by harassing and punishing property owners who refuse to surrender their property to the United States without fair compensation? The answer should be a resounding "Yes." I The Court acknowledges that, at this stage of proceedings, the facts must be viewed in the light most favorable to Robbins. Ante, at 2594, n. 2. The full force of Robbins' complaint, however, is not quite captured in the Court's restrained account of his allegations. A more complete rendition of the saga that sparked this suit is in order. Upon discovering that BLM had mistakenly allowed its easement across High Island Ranch to expire, BLM area manager Joseph Vessels contacted Robbins at his home in Alabama to demand that Robbins grant a new easement. Vessels was on shaky legal ground. A federal regulation authorized BLM to require a landowner seeking a right-of-way across Government land to grant reciprocal access to his own land. See (2004). But Robbins never applied for a right-of-way across federal land (the prior owner did), and the Government cites no law or regulation commanding Robbins to grant a new easement to make up for BLM's neglect in losing the first one. Robbins was unwilling to capitulate to unilateral demands, but told Vessels he would negotiate with BLM when he moved to Wyoming. Vessels would have none of it: "This is what you're going to do," he told Robbins. Plaintiff-Appellee's Supp.App. in No. 04-8016 (CA10), p. 325 (hereinafter CA10 App.). Edward Parodi, a range technician in the BLM office, testified that from the very beginning, agency employees referred to Robbins as "the rich SOB from Alabama [who] got [the Ranch]." App. 121. Trouble started almost immediately. Shortly after their first conversation, Vessels wrote Robbins to ask permission to survey his land, presumably to establish the contours of the easement. Robbins refused, believing there was no need for a survey until an agreement had been reached. Vessels conducted the survey anyway, and chuckled when he told Robbins of the trespass. CA10
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Wilkie v. Robbins
|
https://www.courtlistener.com/opinion/145705/wilkie-v-robbins/
|
and chuckled when he told Robbins of the trespass. CA10 App. 325-327. At their first face-to-face meeting in Wyoming, Robbins bridled at the one-sided deal BLM proposed. But Vessels was adamant: "The Federal Government does not negotiate," he declared. Over time, Parodi *2610 reported, Vessels' attitude towards Robbins changed from "professional" to "hostile," and "just got worse and worse and worse." App. 124. Other BLM employees shared Vessels' animosity. In one notable instance, Robbins alleged, BLM agent Gene Leone provoked a violent encounter between Robbins and a neighboring landowner, LaVonne Pennoyer. Leone knew Robbins was looking for a water source for his cattle, and he called Pennoyer to warn her to be on the lookout. Robbins, unfamiliar with the territory and possibly misled by BLM, drove cattle onto Pennoyer's land to water at a creek. Pennoyer showed up in her truck, yelling, blowing the horn, and bumping cows. Realizing that he was on Pennoyer's land, Robbins started to push his cows out of her way, when Pennoyer revved her engine and drove her truck straight into the horse Robbins was riding. ; CA10 App. 331-332, 6-681; Pl. Exh. 2, Record 164-166; Pl. Exh. 35a, According to Parodi, after the dust-up, Leone boasted, "I think I finally got a way to get [Robbins'] permits and get him out of business." App. 125, 126. Leone pressed the local sheriff to charge Robbins for his conduct in the encounter with Pennoyer, but the sheriff declined to do so. CA10 App. 331-332. Leone cited the Pennoyer incident as one ground, among others, to suspend Robbins' special recreation use permit. That permit allowed Robbins to lead ranch guests on cattle drives, which were his primary source of revenue from the property. App. 49. BLM aimed at the cattle drives in other ways too. Undermining the authenticity of the experience Robbins offered his guests, BLM employees followed along in trucks, videotaping participants. The Government suggests that this surveillance was a legitimate way to document instances when Robbins crossed onto federal land without permission. The suggestion, however, hardly explains why, on one occasion, BLM employees videotaped several female guests who were seeking privacy so they could relieve themselves. CA10 App. 506-507. As part of the campaign against Robbins, Parodi was instructed to "look closer" for trespass violations, to "investigate harder" and "if [he] could find anything, to find it." App. 129, 130. Parodi testified, in relation to the instructions he was given, that he did not have problems with Robbins: He never found a trespass violation he regarded as willful, and Robbins promptly addressed every concern Parodi
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Wilkie v. Robbins
|
https://www.courtlistener.com/opinion/145705/wilkie-v-robbins/
|
regarded as willful, and Robbins promptly addressed every concern Parodi raised. The Court maintains that the BLM employees "were within their rights to make it plain that Robbins's willingness to give the easement would determine how complaisant they would be" about his infractions, but the record leaves doubt. Ante, at 2602. Parodi testified that he was asked to "do things [he] wasn't authorized [to do]," App. 124, and that Leone's projections about what BLM officers would do to Robbins exceeded "the appropriate mission of the BLM," About Vessels, Parodi said, "[i]t has been my experience that people given authority and not being held in check and not having solid convictions will run amuck and that [is] what I saw happening." Eventually, Parodi was moved to warn Robbins that, if he continued to defy BLM officials, "there would be war, a long war and [BLM] would outlast him and out-spend him." Parodi found BLM's treatment of Robbins so disturbing that it became "the volcanic point" in his decision to retire. "It's one thing to go after somebody that is willfully busting the regulations and going out of their way to get something from the government," *2611 Parodi said, but he saw Robbins only "as a man standing up for his property rights." Pl. Exh. 35C, Record 41. The story thus far told is merely illustrative of Robbins' allegations. The record is replete with accounts of trespasses to Robbins' property, vindictive cancellations of his rights to access federal land, and unjustified or selective enforcement actions. Indeed, BLM was not content with the arrows in its own quiver. Robbins charged that BLM officials sought to enlist other federal agencies in their efforts to harass him. In one troubling incident, a BLM employee, petitioner David Wallace, pressured a Bureau of Indian Affairs (BIA) manager to impound Robbins' cattle, asserting that he was "a bad character" and that "something need[ed] to be done with [him]." CA10 App. 359. The manager rejected the request, observing that the BIA had no problems with Robbins. Even more disconcerting, there was sufficient evidence, the District Court recognized, to support Robbins' allegation that BLM employees filed false criminal charges against him, claiming that he forcibly interfered with a federal officer. Federal prosecutors took up the cause, but Robbins was acquitted by a jury in less than 30 minutes.[1] A news account reported that the jurors "were appalled at the actions of the government," one of them commenting that "Robbins could not have been railroaded any worse if he worked for Union Pacific." BLM's seven-year campaign of harassment had a devastating
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Wilkie v. Robbins
|
https://www.courtlistener.com/opinion/145705/wilkie-v-robbins/
|
Union Pacific." BLM's seven-year campaign of harassment had a devastating impact on Robbins' business. Robbins testified that in a typical summer, the High Island Ranch would accommodate 120 guests spread across six cattle drives. As a result of BLM's harassment, in 2003, Robbins was able to organize only one cattle drive with 21 guests. In addition, Robbins reports that he spent "hundreds of thousands of dollars in costs and attorney's fees" seeking to fend off BLM. Brief for Respondent 9, n. 6. To put an end to the incessant harassment, Robbins filed this suit, alleging that the Fifth Amendment forbids government action calculated to acquire private property coercively and cost-free, and measures taken in retaliation for the owner's resistance to an uncompensated taking. Even assuming Robbins is correct about the Fifth Amendment, he may not proceed unless he has a right to sue. To ground his claim for relief, Robbins relies on II "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." In the Court drew upon that venerable principle in holding that a victim of a Fourth Amendment violation by federal officers has a claim for *2612 relief in the form of money damages. "Historically," the Court observed, "damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." The Court's decisions recognize that the reasoning underlying is not confined to Fourth Amendment claims. In the Court allowed a suit seeking money damages for employment discrimination in violation of the equal protection component of the Fifth Amendment. "[U]nless [constitutional] rights are to become merely precatory," the Court stated, "litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for protection." announced two exceptions to ' rule. "The first [applies] when defendants demonstrate special factors counselling hesitation in the absence of affirmative action by Congress." (quoting ). "The second [applies] when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." -19, (emphasis in original). Prior decisions have invoked these exceptions to bar suits against federal officers in only three contexts.[2] In a federal employee sought recovery for First Amendment violations alleged to have occurred in his workplace. As a civil servant, the plaintiff had recourse to "an elaborate, comprehensive
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Wilkie v. Robbins
|
https://www.courtlistener.com/opinion/145705/wilkie-v-robbins/
|
civil servant, the plaintiff had recourse to "an elaborate, comprehensive scheme" administered by the Civil Service Commission, in which constitutional challenges were "fully cognizable." the Court held that the Social Security Act's scheme of administrative and judicial remedies left no void to be filled by a action. Likewise, on two occasions, the Court concluded that "the unique disciplinary structure of the Military Establishment" precluded a action for harm to military personnel through activity incident to service. United ; Some Members of this Court consider a dated precedent. See ante, at 2608 (THOMAS, J., concurring) )). But the Court has so far adhered to ' core holding: Absent congressional command or special factors counseling hesitation, "victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." III A The Court does not hold that Robbins' suit is precluded by a carefully calibrated administrative regime like those at issue in Bush, Chilicky, Chappell, or Stanley, nor could it. As the Court recognizes, Robbins has no alternative remedy for the relentless torment he alleges. True, Robbins may have had discrete remedies for particular instances of harassment. But, in these circumstances, piecemeal litigation, the Court acknowledges, cannot forestall "death by a thousand cuts." Ante, at 2600 (quoting Brief for Respondent 40). For plaintiffs in Robbins' shoes, "it is damages or nothing." (Harlan, J., concurring in judgment). Despite the Court's awareness that Robbins lacks an effective alternative remedy, it nevertheless bars his suit. The Court finds, on the facts of this case, a special factor counseling hesitation quite unlike any we have recognized before. Allowing Robbins to seek damages for years of harassment, the Court says, "would invite an onslaught of actions," ante, at 2604, with plaintiffs pressing claims "in every sphere of legitimate governmental action affecting property interests," ante, at 2604. The "floodgates" argument the Court today embraces has been rehearsed and rejected before. In Passman, the Court of Appeals emphasized, as a reason counseling denial of a remedy, the danger of "deluging federal courts with [Fifth Amendment based employment discrimination] claims." (internal quotation marks and citation omitted). This Court disagreed, turning to Justice Harlan's concurring opinion in to explain why. The only serious policy argument against recognizing a right of action for Justice Harlan observed, was the risk of inundating courts with Fourth Amendment claims. He found the argument unsatisfactory: "[T]he question appears to be how Fourth Amendment interests rank on a scale of social values compared with, for example, the interests of
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Wilkie v. Robbins
|
https://www.courtlistener.com/opinion/145705/wilkie-v-robbins/
|
of social values compared with, for example, the interests of stockholders defrauded by misleading proxies. Judicial resources, I am well aware, are increasingly scarce these days. Nonetheless, when we automatically close the courthouse door solely on this basis, we implicitly express a value judgment on the comparative importance of classes of legally protected interests." -411, (citation omitted). In attributing heavy weight to the floodgates concern pressed in this case, the Court today veers away from Justice Harlan's sound counsel. B In the Court's view Robbins' complaint poses an inordinate risk of imposing on vigilant federal officers, and inundating federal courts, for his pleading "fails to fit the [Court's] prior retaliation cases." Ante, "Those cases," the Court says, "turn[ed] on an allegation of [an] impermissible purpose and motivation." *2614 ; ; and United ). Robbins' suit, the Court maintains, raises a different sort of claim: that BLM employees went "too far" in their efforts to achieve an objective that "[a]ll agree" was "perfectly legitimate": "trying to induce [Robbins] to grant an easement for public use." Ante, -2602. Developing a legal test to determine when federal officials have gone "too far," ib the Court asserts, would be an "endlessly knotty" task; the attendant uncertainty, the Court fears, would bring on a "tide of suits," inducing an undesirable timidity on the part of federal officials, ante, at 2604-2605. The Court's assertion that the BLM officials acted with a "perfectly legitimate" objective, ante, is a dubious characterization of the long campaign to "bury" Robbins. See App. 49. One may accept that, at the outset, the BLM agents were motivated simply by a desire to secure an easement. But after Robbins refused to cover for the officials' blunder, they resolved to drive him out of business.[3] Even if we allowed that the BLM employees had a permissible objective throughout their harassment of Robbins, and also that they pursued their goal through "legitimate tactics,"[4] it would not follow that Robbins failed to state a retaliation claim amenable to judicial resolution. Impermissible retaliation may well involve lawful action in service of legitimate objectives. For example, in Board of Comm'rs, Wabaunsee this Court held that a county board of commissioners may cross into unconstitutional territory if it fires a contractor for speaking out against members of the Board on matters of public concern. The Court recognized that terminating a contractor for public criticism of board practices might promote legitimate governmental objectives (e.g., maintaining relationships of trust with those from whom services are purchased). The Court, furthermore, instructed that even where the background law allows a government agency to
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Wilkie v. Robbins
|
https://www.courtlistener.com/opinion/145705/wilkie-v-robbins/
|
even where the background law allows a government agency to terminate a contractor at will, the agency lacks carte blanche to do so in *2615 retaliation for constitutionally protected conduct.[5] The same is true here: BLM officials may have had the authority to cancel Robbins' permits or penalize his trespasses, but they are not at liberty to do so selectively, in retaliation for his exercise of a constitutional right.[6] I therefore cannot join the Court in concluding that Robbins' allegations present questions more "knotty" than the mine-run of constitutional retaliation claims. Because "we have established methods for identifying the presence of an illicit reason in retaliation cases," ante, Robbins' suit can be resolved in familiar fashion. A court need only ask whether Robbins engaged in constitutionally protected conduct (resisting the surrender of his property sans compensation), and if so, whether that was the reason BLM agents harassed him.[7] C The Court's opinion is driven by the "fear" that a " cure" for the retaliation Robbins experienced may be "worse than the disease." Ante, at 2604. This concern seems to me exaggerated. Robbins' suit is predicated upon the agents' vindictive motive, and the presence of this element in his claim minimizes the risk of making everyday bureaucratic overreaching fare for constitutional litigation. See ("In my view, the presence of [vindictive action] in this case is sufficient to minimize any concern about transforming run-of-the-mill zoning cases into cases of constitutional right."). Indeed, one could securely forecast that the flood the Court fears would not come to pass. In Passman, the Courts said that it did not "perceive the potential for a deluge," because, under 42 U.S.C. "a damages remedy [was] already available to redress injuries such as petitioner's when they occur under color of state law." A similar sideglance could be cast here. Because we have no reason to believe that state employees *2616 are any more or less respectful of Fifth Amendment rights than federal agents, provides a controlled experiment. If numerous claims would eventuate were courts to entertain claims like Robbins', then courts should already have encountered endeavors to mount Fifth Amendment Takings suits under But the Court of Appeals, the Solicitor General, and Robbins all agree that there are no reported cases on charges of retaliation by state officials against the exercise of Takings Clause rights. 433 F.3d 5, ; Brief for Petitioners 48; Brief for Respondent 31. Harassment of the sort Robbins alleges, it seems, is exceedingly rare. Cf. 528 U.S., at[8] One can assume, arguendo, that, as the Court projects, an unqualified judgment for Robbins could prompt
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Wilkie v. Robbins
|
https://www.courtlistener.com/opinion/145705/wilkie-v-robbins/
|
the Court projects, an unqualified judgment for Robbins could prompt "claims in every sphere of legitimate governmental action affecting property interests." Ante, at 2604. Nevertheless, shutting the door to all plaintiffs, even those roughed up as badly as Robbins, is a measure too extreme. Cf. L.Ed.2d. WL 960, ("To the degree claims are meritorious, fear that there will be many of them does not provide a compelling reason to keep them from being heard."). There are better ways to ensure that run-of-the-mill interactions between citizens and their Government do not turn into cases of constitutional right. Cf. (Harlan, J., concurring in judgment) ("I simply cannot agree that the possibility of frivolous claims warrants closing the Courthouse doors to people in ' situation. There are other ways, short of that, of coping with frivolous lawsuits." ). Sexual harassment jurisprudence is a helpful guide. Title VII, the Court has held, does not provide a remedy for every epithet or offensive remark. "For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the condition of the victim's employment and create an abusive work environment." Meritor Savings Bank, See also National Railroad Passenger Adopting a similar standard for Fifth Amendment retaliation claims would "lesse[n] the risk of raising a tide of suits threatening legitimate initiative on the part of the Government's employees." Ante, at 2605. Discrete episodes of hard bargaining that might be viewed as oppressive would not entitle a litigant to relief. But where a plaintiff could prove a pattern of severe and pervasive harassment in duration and degree well beyond the ordinary rough-and-tumble one expects in strenuous negotiations, a suit would provide a remedy. Robbins *2617 would have no trouble meeting that standard.[9] IV Because I conclude that Robbins has a right to sue under I must briefly address the BLM employees' argument that they are entitled to qualified immunity. In resolving claims of official immunity on summary judgment, we ask two questions. First, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" And, if so, was that right clearly established, such that a reasonable officer would have known that his conduct was unlawful. at -202,[10] The Takings Clause instructs that no "private property [shall] be taken for public use, without just compensation." U.S. Const., Amdt. 5. Robbins argues that this provision confers on him the right to insist upon compensation as a condition of the taking of his property. He is surely correct. Correlative to the right to be compensated for
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Wilkie v. Robbins
|
https://www.courtlistener.com/opinion/145705/wilkie-v-robbins/
|
surely correct. Correlative to the right to be compensated for a taking is the right to refuse to submit to a taking where no compensation is in the offing. Cf. 129 L. Ed. 2d ; 97 L. Ed. 2d 7 Robbins further argues that the BLM agents' persistent harassment impermissibly burdened his right to refuse to grant the Government something for nothing. Once again, he is surely correct. To cover for their mistake in failing to record the prior easement, BLM demanded, with no legal authority, that Robbins cede a new easement. Robbins refused, as was his constitutional right. At that point, BLM might have sought to take Robbins' property by eminent domain (assuming the agency was authorized to do so), or it might have attempted to negotiate with him. Instead, the agents harassed Robbins and tried to drive him out of business. The Court has held that the Government may not unnecessarily penalize the exercise of constitutional rights. This principle has been applied, most notably, to protect the freedoms guaranteed by the First Amendment. See, e.g., 518 U.S., -6, 686, (freedom of speech); O'Hare Truck Service, ; But it has also been deployed to protect other constitutional guarantees, including the privilege against self-incrimination, -84, the right to trial by a jury, -583, The principle should apply here too. The constitutional guarantee of just compensation would be worthless if federal agents were permitted to harass and punish landowners who refuse to give up property without it. The Fifth Amendment, therefore, must be read to forbid government action calculated to acquire private property coercively and cost-free, and measures taken in retaliation for the owner's resistance to uncompensated taking. Viewing the facts in the light most favorable to Robbins, BLM agents plainly violated his Fifth Amendment right to be free of such coercion. The closest question in this case is whether the officials are nevertheless entitled to immunity because it is not clearly established that retaliation for the exercise of Fifth Amendment rights runs afoul of the Constitution. The "dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, As noted, all concede that there are no reported cases recognizing a Fifth Amendment right to be free from retaliation. However, it is inconceivable that any reasonable official could have believed to be lawful the pernicious harassment Robbins alleges. In the egregious circumstances of this case, the text of the Takings Clause and our retaliation jurisprudence provided the officers fair warning that
|
Justice Thomas
| 2,007 | 1 |
concurring
|
Wilkie v. Robbins
|
https://www.courtlistener.com/opinion/145705/wilkie-v-robbins/
|
and our retaliation jurisprudence provided the officers fair warning that their behavior impermissibly burdened a constitutional right. See * * * Thirty-six years ago, the Court created the remedy. In doing so, it assured that federal officials would be subject to the same constraints as state officials in dealing with the fundamental rights of the people who dwell in this land. Today, the Court decides that elaboration of to cover Robbins' case should be left to Congress. Ante, at 2604-2605. But see The analog to however, is hardly an obscure part of the Court's jurisprudence. If Congress wishes to codify and further define the remedy, it may do so at anytime. Unless and until Congress acts, however, the Court should not shy away from the effort to ensure that bedrock constitutional rights do not become "merely precatory." Passman, 442 U.S., For the reasons stated, I would affirm the judgment of the Court of Appeals insofar as it addressed Robbins' Fifth Amendment retaliation claim.[11]
|
Justice Ginsburg
| 1,994 | 5 |
majority
|
Reed v. Farley
|
https://www.courtlistener.com/opinion/117860/reed-v-farley/
|
The Interstate Agreement on Detainers Act (IAD), 18 U.S. C. App. 2, is a compact among 48 States, the District of Columbia, and the Federal Government. It enables a participating State to gain custody of a prisoner incarcerated in another jurisdiction, in order to try him on criminal charges. Article IV(c) of the IAD provides that trial of a transferred prisoner "shall be commenced within one hundred and twenty days of the arrival of the prisoner in the receiving State, but for good cause shown in open court, the court *342 having jurisdiction of the matter may grant any necessary or reasonable continuance." IAD Article V(c) states that when trial does not occur within the time prescribed, the charges shall be dismissed with prejudice. The petitioner in this case, Orrin Scott Reed, was transferred in April 1983 from a federal prison in Indiana to state custody pursuant to an IAD request made by Indiana officials. Reed was tried in October of that year, following postponements made and explained in his presence in open court. Reed's petition raises the question whether a state prisoner, asserting a violation of IAD Article IV(c)'s 120-day limitation, may enforce that speedy trial prescription in a federal habeas corpus action under 28 U.S. C. 2254. We hold that a state court's failure to observe the 120-day rule of IAD Article IV(c) is not cognizable under 2254 when the defendant registered no objection to the trial date at the time it was set, and suffered no prejudice attributable to the delayed commencement. Accordingly, we affirm the judgment of the Court of Appeals. I In December 1982, while petitioner Reed was serving time in a Terre Haute, Indiana, federal prison, the State of Indiana charged him with theft and habitual offender status. Indiana authorities lodged a detainer[1] against Reed and, on April 1983, took custody of him. The 120-day rule of IAD Article IV(c) thus instructed that, absent any continuance, Reed's trial was to commence on or before August 25, 1983. At two pretrial conferences, one on June the other on August 1, the trial judge discussed with Reed (who chose to represent himself) and the prosecutor the number of days needed for the trial and the opening date. At the June *343 conference, the court set a July 18 deadline for submission of the many threshold motions Reed said he wished to file, and September 13 as the trial date. That trial date exceeded IAD Article IV(c)'s 120-day limit, but neither the prosecutor nor Reed called the IAD limit to the attention of the judge, and neither
|
Justice Ginsburg
| 1,994 | 5 |
majority
|
Reed v. Farley
|
https://www.courtlistener.com/opinion/117860/reed-v-farley/
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IAD limit to the attention of the judge, and neither asked for a different trial date. Reed did indicate a preference for trial at a time when he would be out of jailon bond (or on his own recognizance); he informed the court that he would be released from federal custody two weeks before September 13, unless federal authorities revoked his "good days" credits, in which case he would be paroled on September 14. App. 39; see at 76. At the August 1 pretrial conference, Reed noted his imminent release from federal custody and asked the court to set bond. at 76-79. In response, the court set bond at $25,000. Also, because of a calendar conflict, the court reset the trial date to September 19. at 79-81.[2] Reed inquired about witness subpoenas and requested books on procedure, but again, he said nothing at the conference to alert the judge to Article IV(c)'s 120-day limit, nor did he express any other objection to the September 19 trial date. Interspersed in Reed's many written and oral pretrial motions are references to IAD provisions other than Article IV(c). See ; (asserting failure to provide hygienic care in violation of IAD Article V). Reed did refer to the IAD prescription on trial commencement in three of the written motions he filed during the 120-day period; indeed, one of these motions was filed on the very day of the August 1 pretrial conference.[3] In none of the three motions, however, did Reed * mention Article IV(c) or the September 13 trial date previously set. In contrast, on August 29, four days after the 120-day period expired, Reed presented a clear statement and citation. In a "Petition for Discharge," he alleged that Indiana had failed to try him within 120 days of his transfer to state custody, and therefore had violated Article IV(c);[4] consequently, he urged, the IAD mandated his immediate release.[5] The trial judge denied the petition, explaining: "Today is the first day I was aware that there was a 120 day limitation on the Detainer Act. The Court made its setting and while there has been a request for moving the trial forward, there has not been any speedy trial request filed, nor has there been anything in the nature of an objection to the trial setting, but only an urging that it be done within the guidelines that have been set out." The morning trial was to commence, September 19, Reed filed a motion for continuance, saying he needed additional time for trial preparation. at 128. A newspaper article published two days earlier
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Justice Ginsburg
| 1,994 | 5 |
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Reed v. Farley
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preparation. at 128. A newspaper article published two days earlier had listed the names of persons *345 called for jury duty and the 1954 to 1980 time frame of Reed's alleged prior felony convictions. Concerned that the article might jeopardize the fairness of the trial, the judge offered Reed three options: (1) start the trial on schedule; (2) postpone it for one week; or (3) continue it to a late October date. Reed chose the third option,at 134, 142, and the trial began on October 18; the jury convicted Reed of theft, and found him a habitual offender. He received a sentence of 4 years in prison on the theft conviction, and 30 years on the habitual offender conviction, the terms to run consecutively. The Indiana Supreme Court affirmed the convictions. Concerning Reed's objection that the trial commenced after the 120-day period specified in IAD Article IV(c), the Indiana Supreme Court stressed the timing of Reed's pleas in court: Reed had vigorously urged at the August 1 pretrial conference other alleged IAD violations (particularly, his asserted right to a hearing in advance of the federal transfer to state custody), but he did not then object to the trial date. at 1-185; see App. 67-74. "The relevant times when [Reed] should have objected were on June 1983, the date the trial was set, and August 1, 1983, the date the trial was reset," the Indiana Supreme Court Reed unsuccessfully sought postconviction relief in the Indiana courts, and then petitioned under 28 U.S. C. 2254 for a federal writ of habeas corpus. The District Court denied the petition. Examining the record, that court concluded that "a significant amount of the delay of trial is attributable to the many motions filed by [Reed] or filed on [Reed's] behalf"; delay chargeable to Reed, the court held, was excludable from the 120-day period. Civ. No. S 90-226 (ND Ind., Sept. 21, 1990), App. 195-196. The Court of Appeals for the Seventh Circuit affirmed. Preliminarily, the Court of Appeals recognized that the IAD, although state law, is also a "law of the United States" within the meaning of * 2254(a). Nonetheless, that court held collateral relief unavailable because Reed's IAD speedy trial arguments and remedial contentions had been considered and rejected by the Indiana courts. the Court of Appeals concluded, "establishes the proper framework for evaluating claims under the IAD." In Stone, this Court held that the exclusionary rule, devised to promote police respect for the Fourth Amendment rights of suspects, should not be applied on collateral review unless the state court failed to consider the
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Justice Ginsburg
| 1,994 | 5 |
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Reed v. Farley
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collateral review unless the state court failed to consider the defendant's arguments. We granted certiorari, to resolve a conflict among the Courts of Appeals on the availability of habeas review of IAD speedy trial claims.[6] *347 II A state prisoner may obtain federal habeas corpus relief "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. " 28 U.S. C. 2254(a) Respondent Indiana initially argues that the IAD is a voluntary interstate agreement, not a "la[w] of the United States" within the meaning of 2254(a). Our precedent, however, has settled that issue: While the IAD is indeed state law, it is a law of the United States as well. See ( 2254 case, holding that the IAD "is a congressionally sanctioned interstate compact within the Compact Clause, U. S. Const., Art. I, 10, cl. 3, and thus is a federal law subject to federal construction"); The Court of Appeals recognized that the IAD is both a law of Indiana and a federal 9 F.2d, Adopting as its framework, however, that court held relief under 2254 unavailable to Stone holds that a federal court may not, under 2254, consider a claim that evidence from an unconstitutional search was introduced at a state prisoner's trial if the prisoner had "an opportunity for full and fair litigation of [the] claim in the state courts." U.S., 9. Our opinion in Stone concentrated on "the nature and purpose of the Fourth Amendment exclusionary rule." at 481. The Court emphasized that its decision confined the exclusionary rule, not the scope of 2254 generally: *348 "Our decision today is not concerned with the scope of the habeas corpus statute as authority for litigating constitutional claims generally. We do reaffirm that the exclusionary rule is a judicially created remedy rather than a personal constitutional right, and we emphasize the minimal utility of the rule when sought to be applied to Fourth Amendment claims in a habeas corpus proceeding." at 495, n. 37 (emphasis in original). We have "repeatedly declined to extend the rule in Stone beyond its original bounds."[7] Because precedent already in place suffices to resolve Reed's case, we do not adopt the Seventh Circuit's Stone -based rationale. We have stated that habeas review is available to check violations of federal laws when the error qualifies as "a fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure." ; accord, United ; The IAD's purposeproviding a nationally uniform means of transferring prisoners between
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Justice Ginsburg
| 1,994 | 5 |
majority
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Reed v. Farley
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IAD's purposeproviding a nationally uniform means of transferring prisoners between jurisdictionscan be effectuated only by nationally uniform interpretation. See Therefore, the argument that *349 the compact would be undermined if a State's courts resisted steadfast enforcement, with total insulation from 2254 review, is not without force. Cf. U. S., at 526 (institutional constraints preclude Supreme Court from overseeing adequately whether state courts have properly applied federal law). This case, however, gives us no cause to consider whether we would confront an omission of the kind contemplated in Timmreck, or Davis, if a state court, presented with a timely request to set a trial date within the IAD's 120-day period, nonetheless refused to comply with Article IV(c). When a defendant obscures Article IV(c)'s time prescription and avoids clear objection until the clock has run, cause for collateral review scarcely exists. An unwitting judicial slip of the kind involved here ranks with the nonconstitutional lapses we have held not cognizable in a postconviction proceeding. In for example, a federal prisoner sought collateral relief, under 28 U.S. C. 2255,[8] based on the trial court's failure at sentencing to afford him an opportunity to make a statement and present information in mitigation of punishment, as required by Rule 32(a) of the Federal Rules of Criminal Procedure. The petitioner, however, had not sought to assert his Rule 32(a) rights at the time of sentencing, a point we stressed: "[W]e are not dealing here with a case where the defendant was affirmatively denied an opportunity to speak during the hearing at which his sentence was imposed. Nor is it suggested that in imposing the sentence the District Judge was either misinformed or uninformed as to any relevant circumstances. Indeed, there is no claim that the defendant would have had anything at all to say if he had been formally invited to speak." *350 "[W]hen all that is shown is a failure to comply with the formal requirements" of Rule 32(a), we held, "collateral relief is not available." Ib But we left open the question whether "[collateral] relief would be available if a violation of Rule 32(a) occurred in the context of other aggravating circumstances." Ib controlled our decision in United where a federal prisoner sought collateral review, under 2255, to set aside a conviction based on a guilty plea. The complainant in Timmreck alleged that the judge who accepted his plea failed to inform him, in violation of Rule 11 of the Federal Rules of Criminal Procedure, that he faced a mandatory post incarceration special parole term. We rejected the collateral attack, observing that the violation
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Justice Ginsburg
| 1,994 | 5 |
majority
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Reed v. Farley
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term. We rejected the collateral attack, observing that the violation of Rule 11 was technical, and did not "resul[t] in a `complete miscarriage of justice' or in a proceeding `inconsistent with the rudimentary demands of fair procedure.' " quoting 368 U. S., at "As in " we found it unnecessary to consider whether "[postconviction] relief would be available if a violation of Rule 11 occurred in the context of other aggravating circumstances." 441 U.S., -785. Reed's case similarly lacks "aggravating circumstances" rendering "`the need for the remedy afforded by the writ of habeas corpus apparent.' " 368 U. S., at quoting Reed had two clear chances to alert the trial judge in open court if he indeed wanted his trial to start on or before August 25, He let both opportunities pass by. At the pretrial hearings at which the trial date was set and rescheduled, on June and August 1, Reed not only failed to mention the 120-day limit; he indicated a preference for holding the trial after his release from federal imprisonment, which was due to occur after the 120 days expired. See Then, on the 124th day, when it was no longer possible to meet Article *351 IV(c)'s deadline, Reed produced his meticulously precise "Petition for Discharge." See and n. 4.[9] As the Court of Appeals observed, had Reed objected to the trial date on June or August 1 "instead of burying his demand in a flood of other documents, the [trial] court could have complied with the IAD's requirements." -210. The Court of Appeals further elaborated: "During the pretrial conference of August 1, 1983, Reed presented several arguments based on the IAD, including claims that the federal government should have held a hearing before turning him over to the state and that his treatment in Indiana fell short of the state's obligations under Art. V(d) and (h). Reed did not mention the fact that the date set for trial would fall outside the 120 days allowed by Art. IV(c). Courts often require litigants to flag important issues orally rather than bury vital (and easily addressed) problems in reams of paper, as Reed d E. g., Fed. R. Crim. P. 30 (requiring a distinct objection to jury instructions); cf. Fed. R. Crim. P. 12(b) (a district judge may require motions to be made orally). It would not have been difficult for the judge to advance the date of the trial or make a finding on the record of good cause, either of which would have satisfied Art. IV(c). Because the subject never came up, however, the trial
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Justice Ginsburg
| 1,994 | 5 |
majority
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Reed v. Farley
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IV(c). Because the subject never came up, however, the trial judge overlooked the problem." Reed regards the Court of Appeals' description of his litigation conduct, even if true, as irrelevant. He maintains *352 that the IAD dictates the result we must reach, for Article V(c) directs dismissal with prejudice when Article IV(c)'s time limit has passed.[10] Article V(c) instructs only that "the appropriate court of the jurisdiction where the indictment. has been pending"i. e., the original trial courtshall dismiss the charges iftrial does not commence within the time Article IV(c) prescribes. Article V(c) does not address the discrete question whether relief for violations of the IAD's speedy trial provisions is available on collateral review. That matter is governed instead by the principles and precedent generally controlling availability of the great writ. See Referring to those guides, and particularly the and Timmreck decisions, we conclude that a state court's failure to observe the 120-day rule of IAD Article IV(c) is not cognizable under 2254 when the defendant registered no objection to the trial date at the time it was set, and suffered no prejudice attributable to the delayed commencement. III Reed argues that he is entitled to habeas relief because the IAD's speedy trial provision "effectuates a constitutional right," the Sixth Amendment guarantee of a speedy trial. Brief for Petitioner 26. Accordingly, he maintains, the alleged IAD violation should be treated as a constitutional violation or as a "fundamental defect" satisfying the standard, not as a mere technical error. Reed's argument is insubstantial for, as he concedes, his constitutional right to a speedy trial was in no way violated. See Tr. of Oral Arg. 7. *353 Reed's trial commenced 54 days after the 120-day period expired. He does not suggest that his ability to present a defense was prejudiced by the delay. Nor could he plausibly make such a claim.[11] Indeed, asserting a need for more time to prepare for a trial that would be "fair and meaningful," App. 128, Reed himself requested a delay beyond the scheduled September 19 opening. A showing of prejudice is required to establish a violation of the Sixth Amendment Speedy Trial Clause, and that necessary ingredient is entirely missing here. See IV More strenuously, Reed argues that and similar decisions establish a standard for federal prisoners seeking relief under 28 U.S. C. 2255,[12] not for state prisoners seeking relief under 2254. But it is scarcely doubted that, at least where mere statutory violations are at issue, " 2255 was intended to mirror 2254 in operative effect." Far from suggesting that the standard is inapplicable to
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Justice Ginsburg
| 1,994 | 5 |
majority
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Reed v. Farley
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effect." Far from suggesting that the standard is inapplicable to 2254 cases, our decisions assume that controls collateral reviewunder both 2254 and 2255when a federal statute, but not the *354 Constitution, is the basis for the postconviction attack. For example, in a 2254 case, we recalled "the established rule with respect to nonconstitutional claims" as follows: "[N]onconstitutional claims can be raised on collateral review only if the alleged error constituted a ` "fundamental defect which inherently results in a complete miscarriage of justice."` " U.S., at 477, n. 10, quoting Davis 417 U. S., at quoting 368 U. S., at[13] Reed nevertheless suggests that we invoked the fundamental defect standard in and Timmreck for this sole reason: "So far as convictions obtained in the federal courts are concerned, the general rule is that the writ of habeas corpus will not be allowed to do service for an appeal." The same "general rule," however, applies to 2254. Where the petitionerwhether a state or federal prisonerfailed properly to raise his claim on direct review, the writ is available only if the petitioner establishes "cause" for the waiver and shows "actual prejudice resulting from the alleged violation." ; at 87. We see no reason to afford habeas review to a state prisoner like Reed, who let a time clock run without alerting the trial court, yet deny collateral review to a federal prisoner similarly situated. See ); see also United (collateral review of procedurally defaulted claims is subject to same "cause and actual prejudice" standard, whether the claim is brought by a state prisoner under 2254 or a federal prisoner under 2255). Reed contends that the scope of review should be broader under 2254 than under 2255, because state prisoners, unlike their federal counterparts, have "had no meaningful opportunity to have a federal court consider any federal claim." Brief for Petitioner 34. But concern that state courts might be hostile to the federal law here at stake is muted by two considerations. First, we have reserved the question whether federal habeas review is available to check violations of the IAD's speedy trial prescriptions when the state court disregards timely pleas for their application. See Second, the IAD is both federal law and the law of Indiana. Ind. Code 35-33-10-4 As the Court of Appeals noted: "We have no more reason to suppose that the Supreme Court of Indiana seeks to undermine the IAD than we have to suppose that it seeks to undermine any other law of Indiana." 9 F.2d, at 211. * * * For the reasons stated, the judgment of the
|
Justice Blackmun
| 1,981 | 11 |
concurring
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United Parcel Service, Inc. v. Mitchell
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https://www.courtlistener.com/opinion/110459/united-parcel-service-inc-v-mitchell/
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I join the Court's opinion because I am persuaded that the Court has made the correct choice between the two state-law alternatives presented by the parties. As the Court observes, the applicability of 10 (b) of the National Labor Relations Act, 29 U.S. C. 160 (b), was never pressed by *65 either party, and was not considered by the Court of Appeals. Although I find much that is persuasive in JUSTICE STEWART'S analysis, resolution of the 10 (b) question properly should await the development of a full adversarial record. JUSTICE STEWART, concurring in the judgment. The Court believes itself obligated by Auto to determine the applicable statute of limitations in this case "as a matter of federal law, by reference to the appropriate state statute of limitations."[1] I do not believe, however, that we are so constrained by Hoosier. Instead of deciding which of two almost equally relevant state limitations periods applies to the respondent employee's claims, I would impose the limitations period of 10 (b) of the National Labor Relations Act (NLRA), 29 U.S. C. 160 (b). A Hoosier involved a straightforward breach-of-contract damages suit brought by a union against an employer under 301 of the Labor Management Relations Act (LMRA). As Congress had not provided a limitations period for 301 suits, the Court concluded that a state statute of limitations should apply. But the Court was careful to note that it was not deciding the appropriate time limits for all suits brought under 301: "The present suit is essentially an action for damages caused by an alleged breach of an employer's obligation embodied in a collective bargaining agreement. Such an action closely resembles an action for breach of contract cognizable at common law. Whether other 301 suits different from the present one might call for the application of other rules on timeliness, we are not required *66 to decide, and we indicate no view whatsoever on that question." n. 7. The Court also observed, in response to the claim that reliance on varying state limitations statutes was contrary to the national interest in uniformity in industrial relations, that the kind of contract dispute it had before it did not implicate "those consensual processes that federal labor law is chiefly designed to promotethe formation of the agreement and the private settlement of disputes under it." The case before us is quite unlike the one in Hoosier. It is a hybrid " 301 and breach of duty sui[t]," brought by an employee against both his employer and his union in order to set aside a "final and binding" determination of
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Justice Blackmun
| 1,981 | 11 |
concurring
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United Parcel Service, Inc. v. Mitchell
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https://www.courtlistener.com/opinion/110459/united-parcel-service-inc-v-mitchell/
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order to set aside a "final and binding" determination of a grievance, arrived at through the collectively bargained method of resolving the grievance. It is, therefore, a direct challenge to "the private settlement of disputes under [the collective-bargaining agreement]." Moreover, unlike Hoosier, where the employee's complaint was rooted solely in 301 of the LMRA, the respondent employee here has two claims, each with its own discrete jurisdictional base. The contract claim against the employer is based on 301, but the duty of fair representation is derived from the NLRA.[2] Yet the two claims are inextricably interdependent. *67 "To prevail against either the company or the Union, [employee-plaintiffs] must not only show that their discharge was contrary to the contract but must also carry the burden of demonstrating breach of duty by the Union." Accordingly, a plaintiff must prevail upon his unfair representation claim before he may even litigate the merits of his 301 claim against the employer. Thus, the suit in this case, unlike the one in Hoosier, cannot be likened to "an action for breach of contract cognizable at common law." n. 7. Instead, it is an amalgam of 301, which has no limitations period, and the NLRA. And, of course, the latter contains a limitations provision. Although 10 (b) of the NLRA was designed to limit the initiation of unfair labor practice claims[3] in order *68 to safeguard the stability of collective-bargaining agreements, the policy behind it applies with equal force in this context. B Congress enacted 10 (b) of the NLRA to protect continuing collective-bargaining systems from delayed attack. The 6-month bar of 10 (b)[4] is designed to strengthen and defend the "stability of bargaining relationships." The time limitation reflects *69 the balance drawn by Congress, "the expositor of the national interest," between the interests of employees in redressing grievances and "vindicati[ng] [their] statutory rights," ib and the "interest in `industrial peace which it is the overall purpose of the Act to secure.'" (quoting (CA2) (L. Hand, concurring)).[5] Of course, one aspect of the respondent employee's claim in this case is predicated on 301 of the LMRA; if the plaintiff can establish his claim for breach of the duty of fair representation, he may then pursue his 301 breach-of-contract claim. But here, unlike Hoosier, the latter action, like the breach-of-duty claim, is a challenge to a result reached in the contractual grievance resolution system. Accordingly, the policy of promoting stability in collective bargaining underlying the time bar of 10 (b) is applicable to this aspect of the respondent employee's case as well. In any event, the two
|
Justice Blackmun
| 1,981 | 11 |
concurring
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United Parcel Service, Inc. v. Mitchell
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https://www.courtlistener.com/opinion/110459/united-parcel-service-inc-v-mitchell/
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respondent employee's case as well. In any event, the two elements of respondent employee's hybrid action cannot be disentangled: the duty of fair representation is "part and parcel of [the] 301 [claim]." When the 6-month period of 10 (b) has passed, the employee should no longer be able to challenge the alleged breach of duty by his union,[6] and as this is a precondition for maintaining the contract action, he should not be able to challenge the employer's action either. Finally, even if it were appropriate to view the respondent employee's suit in this case as founded solely on 301, the *70 Court is not obliged to apply a state statute of limitations. As already noted, Hoosier contemplated that "other 301 suits different from the present one might call for application of other rules of timeliness." n. 7. And the Court has indicated, in a more general context, that state limitations periods will not be applied when their employment would be inconsistent with national policy: "[T]he Court has not mechanically applied a state statute of limitations simply because a limitations period is absent from the federal statute. State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies. State limitations periods will not be borrowed if their application would be inconsistent with the underlying policies of the federal statute." Occidental Life Ins. In 10 (b) of the NLRA, Congress established a limitations period attuned to what it viewed as the proper balance between the national interests in stable bargaining relationships and finality of private settlements, and an employee's interest in setting aside what he views as an unjust settlement under the collective-bargaining system. That is precisely the balance at issue in this case. The employee's interest in setting aside the "final and binding" determination of a grievance through the method established by the collective-bargaining agreement unquestionably implicates "those consensual processes that federal labor law is chiefly designed to promotethe formation of the agreement and the private settlement of disputes under it." Hoosier, 383 U. S., Accordingly, "[t]he need for uniformity" among procedures followed for similar claims, ib[7] as well as the clear congressional indication *71 of the proper balance between the interests at stake, counsels the adoption of 10 (b) of the NLRA as the appropriate limitations period for lawsuits such as this. C Because the respondent employee commenced his suit beyond the 6-month bar of 10 (b) of the
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Justice Blackmun
| 1,981 | 11 |
concurring
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United Parcel Service, Inc. v. Mitchell
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https://www.courtlistener.com/opinion/110459/united-parcel-service-inc-v-mitchell/
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suit beyond the 6-month bar of 10 (b) of the NLRA, I agree that the judgment of the Court of Appeals must be reversed. JUSTICE STEVENS, concurring in part and dissenting in part. In this action, the plaintiff-employee seeks a judicial remedy against his former employer for wrongful discharge, and against his union for breach of the duty of fair representation. The District Court granted summary judgment in favor of both defendants because of the employee's failure to file suit within what that court viewed as the appropriate period of limitations. The Court of Appeals reversed the District Court's judgment as to both claims and remanded for further proceedings. The employer alone sought further review in this Court. Therefore, at this stage of the litigation, the only question properly presented for our consideration is whether the Court of Appeals chose the most appropriate New York statute of limitations to govern the employee's claim against his former employer for wrongful discharge.[1] Although I agree for the most part with the *72 Court's resolution of that question, I fear that its failure expressly to limit its reasoning to the narrow question presented in this case may suggest that today's decision also resolves the question whether the same statute of limitations governs the employee's claim against the union for breach of the duty of fair representation. That interpretation, although understandable in light of the broad language of the Court's opinion, would be inconsistent with the procedural posture of this case and, in addition, would be conceptually unsound. I concur in the Court's conclusion that it is appropriate, for purposes of federal labor law, to characterize the employee's suit against his employer as an action to set aside an arbitration award. In the arbitration proceeding that took place prior to this litigation, the employer prevailed on the precise claim respondent raises against it in this judicial proceeding that the discharge violated the collective-bargaining agreement. If the employee now were to prevail against the employer on this claim, the necessary effect of the resulting court order would be to undo the arbitration award. See ante, at 61. Accordingly, in upholding the employer's position, the Court properly emphasizes the importance of the finality and certainty of arbitration in the collective-bargaining context, and properly treats the adverse arbitration decision as a substantial obstacle to the employee's pursuit of judicial relief against his employer. The employee's claim against his union for breach of the duty of fair representation, however, is of a far different character. Although this claim is closely related to the claim *73 against the employer,
|
Justice Blackmun
| 1,981 | 11 |
concurring
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United Parcel Service, Inc. v. Mitchell
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https://www.courtlistener.com/opinion/110459/united-parcel-service-inc-v-mitchell/
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is closely related to the claim *73 against the employer, the two claims are nonetheless conceptually distinct.[2] The claim against the union may not, in my judgment, be characterized as an action to vacate an arbitration award. The arbitration proceeding did not, and indeed, could not,[3] resolve the employee's claim against the union. Although the union was a party to the arbitration, it acted only as the employee's representative; the Joint Panel did not address or resolve any dispute between the employee and the union. Therefore, with respect to the employee's action against the union, the finality and certainty of arbitration are not threatened by the prospect that the employee might prevail on his judicial claim. Because no arbitrator has decided the primary issue presented by this claim, no arbitration award need be undone, even if the employee ultimately prevails.[4] *74 The employee's claim against his union is properly characterized, not as an action to vacate an arbitration award, but rather as a malpractice claim. There is no conceptual reason why that claim may not survive even if the employer is able to rely on the arbitration award as a conclusive determination of its obligations under the collective-bargaining agreement.[5] Thus, by analogy, a lawyer who negligently allows the statute of limitations to run on his client's valid claim may be liable to his client even though the original defendant no longer has any exposure. Cf. cert. denied, In this case, I agree with the Court that the statute of limitations applicable to respondent's claim against his former employer is the 90-day statute governing actions to vacate or *75 modify arbitration awards in New York.[6] It surely does not follow, however, that that statute is applicable to the claim against the union for breach of its duty of fair representation.[7] Because the union did not seek review of the judgment of the Court of Appeals, it is not appropriate to decide what period of limitations should be applied to the employee's claim against it. It is, however, noteworthy that JUSTICE STEWART'S proposal that we strain to conclude that Congress intended that 10 (b) of the National Labor Relations Act, 29 U.S. C. 160 (b),[8] be applied to causes of action that this *76 Court had not yet divined when 10 (b) was enacted,[9] cf. Watt v. Alaska, post, p. 276 (STEWART, J., dissenting), rests on a rationale that might apply to a 301 claim against the union, but which is wholly inapplicable to the claim against the employer, because the employer is not accused of any unfair labor practice. In sum,
|
Justice Breyer
| 1,999 | 2 |
majority
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Federal Employees v. Department of Interior
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https://www.courtlistener.com/opinion/118270/federal-employees-v-department-of-interior/
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The Federal Service Labor-Management Relations Statute requires federal agencies and the unions that represent their employees to "meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement." 5 U.S. C. 7114(a)(4). We here consider whether that duty to bargain extends to a clause proposed by a union that would bind the parties to bargain midtermthat is, while the basic comprehensive labor contract is in effectabout subjects not included in that basic contract. We vacate a lower court holding that the statutory duty to bargain does not encompass midterm bargaining (or bargaining about midterm bargaining). We conclude that the Statute delegates to the Federal Labor Relations Authority the legal power to determine whether the parties must engage in midterm bargaining (or bargaining about that matter). We remand these cases so that the Authority may exercise that power. I Congress enacted the Federal Service Labor-Management Relations Statute (Statute or FSLMRS) in 18. See 5 U.S. C. 7101 et seq. Declaring that "labor organizations and collective bargaining in the civil service are in the public interest," 7101(a), the Statute grants federal agency employees the right to organize, provides for collective bargaining, and defines various unfair labor practices. See 7114(a)(1), 7116. It creates the Federal Labor Relations Authority, which it makes responsible for implementing the Statute through the exercise of broad adjudicatory, policymaking, and rulemaking powers. 7104, 7105. And it establishes within the Authority a Federal Service Impasses Panel, to which it grants the power to resolve negotiation impasses through compulsory arbitration, 7119, hence without the strikes that the law forbids to federal employees, 7116(b)(7). *89 Of particular relevance here, the Statute requires a federal agency employer to "meet" with the employees' collectivebargaining representative and to "negotiate in good faith for the purposes of arriving at a collective bargaining agreement." 7114(a)(4). The Courts of Appeals disagree about whether, or the extent to which, this good-faith-bargaining requirement extends to midterm bargaining. Suppose, for example, that the federal agency and the union negotiate a basic 5-year contract. In the third year a matter arises that the contract does not address. If the union seeks negotiations about the matter, does the Statute require the agency to bargain then and there, or can the agency wait for basic contract renewal negotiations? Does it matter whether the basic contract itself contains a "zipper clause" expressly forbidding such bargaining? Does it matter whether the basic contract itself contains a clause expressly permitting midterm bargaining? Can the parties insist upon bargaining endterm (that is, during the negotiations over adopting or renewing a basic labor contract)
|
Justice Breyer
| 1,999 | 2 |
majority
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Federal Employees v. Department of Interior
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https://www.courtlistener.com/opinion/118270/federal-employees-v-department-of-interior/
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the negotiations over adopting or renewing a basic labor contract) about whether to include one or the other such clauses in the basic contract itself? In the Authority began to answer some of these questions. It considered a union's effort to force midterm negotiations about a matter the basic labor contract did not address, and it held that the Statute did not require the agency to bargain. Internal Revenue Service, 17 F. L. R. A. 731 (IRS I) The Court of Appeals for the District of Columbia Circuit, however, set aside the Authority's ruling. The court held that in light of the intent and purpose of the Statute, it must be read to require midterm bargaining, inasmuch as it did not create any distinction between bargaining at the end of a labor contract's term and bargaining during that term. National Treasury Employees On remand the Authority reversed its earlier position. Internal Revenue Service, 29 F. L. R. A. *90 162, 166 (IRS II). Accepting the D. C. Circuit's analysis, the Authority held: "[T]he duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters which are not addressed in the [basic] agreement and were not clearly and unmistakably waived by the union during negotiation of the agreement." The Fourth Circuit has taken a different view of the matter. It has held that "union-initiated midterm bargaining is not required by the statute and would undermine the congressional policies underlying the statute." Social Security Nor, in its view, may the basic labor contract itself impose a midterm bargaining duty upon the parties. Department of In the present suit, the National Federation of Federal Employees, Local 1309 (Union), representing employees of the United States Geological Survey, a subagency of the Department of the Interior (Agency), proposed including in the basic labor contract a midterm bargaining provision that said: "The Union may request and the Employer will be obliged to negotiate [midterm] on any negotiable matters not covered by the provisions of this [basic] agreement." Department of Interior, 52 F. L. R. A. 475, 476 (1996). The Agency, relying on the Fourth Circuit's view that the Statute prohibits such a provision, refused to accept, or to bargain about, the proposed clause. The Authority, reiterating its own (and the D. C. Circuit's) contrary view, held that the Agency's refusal to bargain amounted to an unfair labor practice. The Statute itself, said the Authority, *91 imposes an obligation to engage in midterm bargainingan obligation that the proposed clause
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Justice Breyer
| 1,999 | 2 |
majority
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Federal Employees v. Department of Interior
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https://www.courtlistener.com/opinion/118270/federal-employees-v-department-of-interior/
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to engage in midterm bargainingan obligation that the proposed clause only reiterates. And even if such an obligation did not exist under the Statute, the Authority added, a proposal to create a contractual obligation to bargain midterm is a fit subject for endterm negotiation. Consequently, the Authority ordered the Agency to bargain over the proposed clause. The Fourth Circuit set aside the Authority's order. The court reiterated its own view that the Statute itself does not impose any midterm bargaining duty. That being so, it concluded, the parties should not be required to bargain endterm about including a clause that would require bargaining midterm. The court reasoned that once bargaining over such a clause began, the employer would have no choice but to accept the clause. Were the employer not to do so (by bargaining to impasse over the proposed clause), the Federal Service Impasses Panel would then inevitably insert the clause over the employer's objection, as the Impasses Panel (like the D. C. Circuit) believes that a midterm bargaining clause would merely reiterate the duty to bargain midterm that the Statute itself imposes. We granted certiorari to consider the conflicting views of the Circuits. II We shall focus primarily upon the basic question that divided the Circuits: Does the Statute itself impose a duty to bargain during the term of an existing labor contract? The Fourth Circuit thought that the Statute did not impose a duty to bargain midterm and that the matter was sufficiently clear to warrant judicial rejection of the contrary view of the agency charged with the Statute's administration. ). We do not agree with the Fourth Circuit, for we find the Statute's language sufficiently ambiguous or open on the point as to require judicial deference to reasonable interpretation or elaboration by the agency charged with its execution. See at -845; Fort Stewart The D. C. Circuit, the Fourth Circuit, and the Authority all agree that the Statute itself does not expressly address union-initiated midterm bargaining. See ; ; Brief for Petitioner FLRA in No. -1243, p. 18. The Statute's relevant language simply says that federal agency employer and union representative "shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement." 5 U.S. C. 7114(a)(4). It defines the key term "collective bargaining agreement" as an "agreement entered into as a result of collective bargaining." 7103(a)(8). And it goes on to define "collective bargaining" as involving the meeting of employer and employee representatives "at reasonable times" to "consult" and to "bargain in a good-faith effort to reach agreement with respect
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Justice Breyer
| 1,999 | 2 |
majority
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Federal Employees v. Department of Interior
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https://www.courtlistener.com/opinion/118270/federal-employees-v-department-of-interior/
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"bargain in a good-faith effort to reach agreement with respect to the conditions of employment," incorporating "any collective bargaining agreement reached" as a result of these negotiations in "a written document." 7103(a)(12). This language, taken literally, may or may not include a duty to bargain collectively midterm. The Agency, here represented by the Solicitor General, argues that in context, this language must exclude midterm bargaining. We shall explain why we do not agree with each of the Agency's basic arguments. First, the Agency makes a variety of linguistic arguments. As an initial matter, it emphasizes the words "arriving at" in the Statute's general statement that the parties must bargain "for the purposes of arriving at a collective bargaining agreement." This statement tends to exclude midterm bargaining, the Agency contends, because parties engage in midterm bargaining, not for the purpose of arriving at, but *93 for the purpose of supplementing, their basic, comprehensive labor contract. In other words, the basic collectivebargaining agreement is the only appropriate destination at which negotiations might "arriv[e]." The Agency adds that "collective bargaining agreement" is a term of art, which only and always refers to basic labor contracts, not to midterm agreements. Further, while the Agency acknowledges that there is a duty to bargain midterm in the private sector, see it argues that this private-sector duty is based upon language in the National Labor Relations Act (NLRA) that is different in significant respects from the language in the Statute here. The Agency explains that the NLRA defines private-sector collective bargaining to include (1) negotiation "with respect to wages, hours, and other terms and conditions of employment, or [(2)] the negotiation of an agreement, or any question arising thereunder." 29 U.S. C. 158(d) (emphasis added). The "or," under this view, indicates that privatesector employers have a comprehensive duty to "bargain collectively" whether or not such bargaining is part of "the negotiation of an agreement" leading to "written contract." In our view, these linguistic arguments, while logical, make too much of too little. One can easily read "arriving at a collective bargaining agreement " as including an agreement reached at the conclusion of midterm bargaining, particularly because the Statute itself does no more than define the relevant term "collective bargaining agreement" in a circular wayas "an agreement entered into as a result of collective bargaining." 5 U.S. C. 7103(a)(8). Nor have we found any statute, judicial opinion, agency document, or treatise that says whether the words "collective bargaining agreement" are words of art that must necessarily exclude midterm agreements. Finally, the linguistic differences between the NLRA and the
|
Justice Breyer
| 1,999 | 2 |
majority
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Federal Employees v. Department of Interior
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https://www.courtlistener.com/opinion/118270/federal-employees-v-department-of-interior/
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agreements. Finally, the linguistic differences between the NLRA and the FSLMRS tell us little, particularly given the fact that the two labor statutes, like collective bargaining *94 itself, are not otherwise identical in the two sectors. For all these reasons, we find in the relevant statutory language ambiguity, not certainty. Second, the Agencylike the Fourth Circuitcontends that the Statute's policies demand a reading of the statutory language that would exclude midterm bargaining from its definition of "collective bargaining." The availability of midterm bargaining, the Agency argues, might lead unions to withhold certain subjects from ordinary endterm negotiations and then to raise them during the term, under more favorable bargaining conditions. A union might conclude, for example, that it is more likely to get what it wants by presenting a proposal during the term (when no other issues are on the table and a compromise is less likely) and then negotiating to impasse, thus leaving the matter for the Federal Service Impasses Panel to resolve. The Agency also points out that public-sector and private-sector bargaining differ in this respect. Private-sector unions enforce their views through strikes, and because they hesitate to strike midterm, they also have no particular incentive to bargain midterm. But public-sector unions enforce their views through compulsory arbitration, not strikes. Hence, the argument goes, public-sector unions have a unique incentive to bargain midterm on a piecemeal basis, thereby threatening to undermine the basic collective-bargaining process. See, e. g., 956 F. 2d, at 1288-1289. Other policy concerns, however, argue for a different reading of the Statute. Without midterm bargaining, for example, will it prove possible to find a collective solution to a workplace problem, say, a health or safety hazard, that first appeared midterm? The Statute's emphasis upon collective bargaining as "contribut[ing] to the effective conduct of public business," 5 U.S. C. 7101(a)(1)(B), suggests that it would favor joint, not unilateral, solutions to such midterm problems. *95 The Authority would seem better suited than a court to make the workplace-related empirical judgments that would help properly balance these, and other, policy-related considerations. The Statute does not indicate that Congress itself decided to make these specific policy judgments. Hence the Agency's policy arguments illustrate the need for the Authority's elaboration or refinement of the basic statutory collective-bargaining obligation; they illustrate the appropriateness of judicial deference to considered Authority views on the matter; and, most importantly, they do not narrow the scope of a statutory provision the language of which is consistent with a variety of interpretations. Third, the Agency argues that the Statute's history and prior administrative practice support its
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Justice Breyer
| 1,999 | 2 |
majority
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Federal Employees v. Department of Interior
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https://www.courtlistener.com/opinion/118270/federal-employees-v-department-of-interior/
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that the Statute's history and prior administrative practice support its view that federal agencies have no duty to bargain midterm. The Statute grew out of an Executive Order that previously had governed federal-sector labor relations. See Exec. Order No. 11491, 3 CFR 861 (1966-10 Comp.), as amended by Exec. Order Nos. 11616, 6, and 11838, 3 CFR 605, 634, 957 (11-15 Comp.). In support, the Agency cites a case in which an Assistant Secretary of Labor, applying that Executive Order, dismissed an unfair labor practice complaint on the ground, among others, that a federal agency need not bargain over midterm union proposals. Army and Air Force Exchange Serv., Capital Exchange Region Headquarters, Case No. 22-6657(CA), 2 Rulings on Requests for Review of Assistant Secretary of Labor for Labor-Management Relations 561-562 (16) (not reviewed by the Federal Labor Relations Council, predecessor to the Authority); see IRS I, 17 F. L. R. A., at 736-737, n. 7 (finding, based upon this decision, that there was no obligation to bargain over midterm union proposals under the Executive Order). A single alternative ground, howeverin a single, unreviewed decision from before the Statute was enacteddoes not demonstrate the kind of historical practice that one might assume would *96 be reflected in the Statute, particularly when at least one treatise suggested at the time that federal labor relations practice was to the contrary. See H. Robinson, Negotiability in the Federal Sector 10-11, and n. 9 (1981) (stating that under the Executive Order both unions and agencies had a continuing duty to bargain through the term of a basic labor contract). The Agency also points to a Senate Report in support of its interpretation of the Statute. That Report speaks of the parties' "mutual duty to bargain" with respect to (1) "changes in established personnel policies proposed by management," and (2) "negotiable proposals initiated by either the agency or [the union] in the context of negotiations leading to a basic collective bargaining agreement. " S. Rep. No. 95-969, p. 104 (18) (emphasis added). This Report, however, concerns a bill that contains language similar to the language before us but was not enacted into law. According to the D. C. Circuit, at least, any distinction between basic and midterm bargaining that is indicated by this passage "did not survive the rejection by Congress of the Senate's restrictive view of the rights of labor and the importance of collective bargaining." 810 F. 2d, In any event, the Report's list of possible occasions for collective bargaining does not purport to be an exclusive list; it does not say that the
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Justice Breyer
| 1,999 | 2 |
majority
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Federal Employees v. Department of Interior
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https://www.courtlistener.com/opinion/118270/federal-employees-v-department-of-interior/
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be an exclusive list; it does not say that the Statute was understood to exclude midterm bargaining; and any such implication is simply too distant to control our reading of the Statute. Fourth, the Agency and the Fourth Circuit contend that the "management rights" provision of the Statute, 5 U.S. C. 7106, does authorize limited midterm bargaining in respect to certain matters (not here at issue), and that by negative implication it denies permission to bargain midterm in respect to any others. See, e. g., Our examination of that provision, * however, finds little support for such a strong negative implication. Subsection (a) of the management rights provision withdraws from collective bargaining certain subjects that it reserves exclusively for decision by management. It specifies, for example, that federal agency "management official[s]" will retain their authority to hire, fire, promote, and assign work, and also to determine the agency's "mission, budget, organization, number of employees, and internal security practices." 7106(a). Subsection (b), however, permits a certain amount of collective bargaining in respect to the very subjects that subsection (a) withdrew. Subsection (b) states: "Nothing in this section shall preclude any agency and any labor organization from negotiating "(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work; "(2) procedures which management officials will observe in exercising any authority under this section; or "(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials." 7106(b) (emphasis added). The two subsections of the management rights provision, taken together, do not help the Agency. While the provision contemplates that bargaining over the impact and implementation of management changes may take place during the term of the basic labor contract, subsection (b) need not be read to actually impose a duty to bargain midterm. The italicized clause, "[n]othing in this section shall preclude," indicates only that the delegation of certain rights to management *98 (e. g., promotions) shall not preclude negotiations about certain related matters (e. g., promotion procedures). By its terms, then, subsection (b) does nothing more than create an exception to subsection (a), preserving the duty to bargain with respect to certain matters otherwise committed to the discretion of management. Because 7106(b) chiefly addresses the subject matter of bargaining and not the timing, one could reasonably conclude that while that subsection contemplates midterm bargaining in the circumstances there specified, the duty to bargain midterm finds its
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Justice Breyer
| 1,999 | 2 |
majority
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Federal Employees v. Department of Interior
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https://www.courtlistener.com/opinion/118270/federal-employees-v-department-of-interior/
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circumstances there specified, the duty to bargain midterm finds its source elsewhere in the Statute. Hence, the management rights provision seems to hurt, as much as to help, the Agency's basic argument. The upshot of this analysis is that where the Agency and the Fourth Circuit find a clear statutory denial of any midterm bargaining obligation, we find ambiguity created by the Statute's use of general language that might, or might not, encompass various forms of midterm bargaining. That kind of statutory ambiguity is inconsistent both with the Fourth Circuit's absolute reading of the Statute and also with the D. C. Circuit's similarly absolute, but opposite, reading. Compare 956 F. 2d, with 810 F. 2d, at 301 (rejecting the Authority's position that there is no duty to bargain midterm on the ground that it is "contrary to the intent of the legislature and the guiding purpose of the statute"). Indeed, the D. C. Circuit's analysis implicitly concedes the need to make at least some midterm bargaining distinctions, when it assumes that the midterm bargaining obligation does not extend to matters that are covered by the basic contract. See The statutory ambiguity is perfectly consistent, however, with the conclusion that Congress delegated to the Authority the power to determinewithin appropriate legal bounds, see, e. g., 5 U.S. C. 706 (Administrative Procedure Act); U. S. A. whether, when, where, and what sort of midterm bargaining is required. The Statute's delegation of rulemaking, adjudicatory, and policymaking powers to the Authority supports this conclusion. See 5 U.S. C. 7105(a)(1) ("Authority shall provide leadership in establishing policies and guidance"); 7105(a)(2)(E) (Authority "resolves issues relating to the duty to bargain in good faith"); 7117(c) (Authority resolves disputes about whether the duty to bargain in good faith extends to a particular matter); accord, American Federation of Govt. Employees, Local 2986, ; American Federation of Govt. Employees, AFLCIO, Council of Soc. Sec. Dist. Office Locals, San Francisco This conclusion is also supported by precedent recognizing the similarity of the Authority's public-sector and the National Labor Relations Board's private-sector roles. As we have recognized, the Authority's function is "to develop specialized expertise in its field of labor relations and to use that expertise to give content to the principles and goals set forth in the Act," and it "is entitled to considerable deference when it exercises its `special function of applying the general provisions of the Act to the complexities' of federal labor relations." Bureau of Alcohol, Tobacco and We conclude that Congress "left" the matters of whether, when, and where midterm bargaining is required "to be resolved
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Justice Breyer
| 1,999 | 2 |
majority
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Federal Employees v. Department of Interior
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https://www.courtlistener.com/opinion/118270/federal-employees-v-department-of-interior/
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when, and where midterm bargaining is required "to be resolved by the agency charged with the administration of the statute in light of everyday realities." III The specific question before us is whether an agency must bargain endterm about including in the basic labor contract a clause that would require certain forms of midterm bargaining. *100 As is true of midterm bargaining itself, and for similar reasons, the Statute grants the Authority leeway (within ordinary legal limits) in answering that question as well. The Authority says that it has determined, as a matter of its own judgment, that the parties must bargain over such a provision. Our reading of its relevant administrative determinations, however, leads us to conclude that its judgment on the matter was occasioned by the D. C. Circuit's holding that the Statute must be read to impose on agencies a duty to bargain midterm. See, e. g., Merit Systems Protection Bd. Professional Assn., 30 F. L. R. A. 852, 859-860 (1988) (midterm bargaining clause is negotiable because it "reiterates a right the Union has under the Statute"); 52 F. L. R. A., at 479 (in the instant suit, restating that same conclusion). The Authority did indicate below that even if it agreed with the Fourth Circuit's position that the Statute does not impose a duty to bargain midterm, the outcome in this litigation would be no different, as the Authority "`has previously upheld the negotiability of proposals despite the absence of a statutory right concerning the matter in question.' " enf. denied, Department of ). This explanation, however, seems more an effort to respond to, and to distinguish, a contrary judicial authority, rather than an independently reasoned effort to develop complex labor policies. Regardless, the Authority's conclusion would seem linked to the D. C. Circuit's basic understanding about the statutory requirements. In light of our determination that the Statute does not resolve the question of midterm bargaining, nor the related question of bargaining about midterm bargaining, we believe the Authority should have the opportunity to consider these questions aware that the Statute permits, but does not compel, the conclusions it reached. *101 The judgment of the Fourth Circuit is vacated, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered.
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per_curiam
| 2,002 | 200 |
per_curiam
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Stewart v. Smith
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https://www.courtlistener.com/opinion/121172/stewart-v-smith/
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At issue in this case is whether, when an Arizona Superior Court denied respondent's successive petition for state postconviction relief because respondent had failed to comply with Arizona Rule of Criminal Procedure 32.2(a)(3) the state court's ruling was independent of federal law. The Court of Appeals for the Ninth Circuit thought not. We granted certiorari and certified to the Arizona Supreme Court a question concerning the proper interpretation of Rule 32.2(a)(3). We have received a response and now reverse the Ninth Circuit's decision. I Respondent, Robert Douglas Smith, was convicted in Arizona in 1982 of first-degree murder, kidnaping, and sexual assault. He was sentenced to death on the murder count and to consecutive 21-year prison terms on the other counts. After a series of unsuccessful petitions for state postconviction relief, respondent filed a federal petition for a writ of habeas corpus under 28 U.S. C. 2241 and 2254 in the United States District Court for the District of Arizona. The petition alleged, among other things, that respondent's Sixth Amendment right to counsel had been violated because his trial counsel had provided ineffective assistance during the sentencing phase of his trial. Respondent had previously brought this ineffectiveassistance claim in a petition for state postconviction relief pursuant to Ariz. Rule Crim. Proc. 32. The Pima County Superior Court denied the claim, finding it waived under Rule 32.2(a)(3) because respondent had failed to raise it in two previous Rule 32 petitions. The state court rejected respondent's contention that his procedural default was excused because his appellate and Rule 32 attorneys suffered from a conflict of interest between their responsibility *858 toward respondent and their allegiance to the Public Defender's office, of which respondent's trial counsel was also a member. The District Court relied on the Pima County Superior Court's procedural ruling on respondent's ineffectiveassistance-of-trial-counsel claim to bar federal habeas relief. Like the state court, the District Court rejected respondent's argument that his appellate and Rule 32 counsel suffered from a conflict of interest which excused his procedural default. The Court of Appeals for the Ninth Circuit reversed, finding that although the state court's procedural default ruling was regularly followed and therefore adequate, see the ruling required consideration of the merits of respondent's claim and was therefore not independent of federal law, see -1197. Rule 32.2(a)(3) applies different standards for waiver depending on whether the claim asserted in a Rule 32 petition is of "sufficient constitutional magnitude." If it is, the rule requires that the waiver be "knowin[g], voluntar[y] and intelligen[t]," not merely omitted from previous petitions. Ariz. Rule Crim. Proc. 32.2(a)(3), comment The
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per_curiam
| 2,002 | 200 |
per_curiam
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Stewart v. Smith
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https://www.courtlistener.com/opinion/121172/stewart-v-smith/
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from previous petitions. Ariz. Rule Crim. Proc. 32.2(a)(3), comment The Ninth Circuit opined that, at the time the state court ruled on respondent's ineffective-assistance claim, the determination of whether a claim is of sufficient magnitude required consideration of the merits of the See ; ). The Ninth Circuit concluded that, under the state court's ruling did not bar federal review of the merits of respondent's See 1197. We granted certiorari to review the Ninth Circuit's decision. *859 II Because we were uncertain about the proper interpretation of Rule 32.2(a)(3), we certified the following question to the Arizona Supreme Court: "At the time of respondent's third Rule 32 petition in did the question whether an asserted claim was of `sufficient constitutional magnitude' to require a knowing, voluntary, and intelligent waiver for purposes of Rule 32.2(a)(3), see Ariz. Rule Crim. Proc. 32.2(a)(3), comment depend upon the merits of the particular claim, see 122, -131 ; or merely upon the particular right alleged to have been violated, see ?" 534 U. S.,at 159. We received the following reply: "We hold that at the time of respondent's third Rule 32 petition in the question whether an asserted claim was of `sufficient constitutional magnitude' to require a knowing, voluntary and intelligent waiver for purposes of Rule 32.2(a)(3), see Comment to 32.2(a)(3), depended not upon the merits of the particular claim, but rather merely upon the particular right alleged to have been violated." The Arizona Supreme Court's reply makes clear that Rule 32.2(a)(3) does not require courts to evaluate the merits of a particular claim, but only to categorize the According to the Arizona Supreme Court, courts must evaluate whether "at its core, [a]claim implicates a significant right that requires a knowing, voluntary, and intelligent waiver." Courts need not decide the *860 merits of the claim, i. e., whether the right was actually violated. They need only identify what type of claim it is, and there is no indication that this identification is based on an interpretation of what federal law requires. See Our cases make clear that "when resolution of [a] state procedural law question depends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law, and our [direct review] jurisdiction is not precluded." at Even assuming that the same standard governs the scope of a district court's power to grant federal habeas relief as governs this Court's jurisdiction to review a state-court judgment on direct review, see Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional
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per_curiam
| 2,002 | 200 |
per_curiam
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Stewart v. Smith
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https://www.courtlistener.com/opinion/121172/stewart-v-smith/
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law because they do not depend upon a federal constitutional ruling on the merits. The District Court properly refused to review respondent's ineffective-assistance-of-trial-counsel The Ninth Circuit erred in holding otherwise. Even though Rule 32.2(a)(3) does not require a federal constitutional ruling on the merits, if the state court's decision rested primarily on a ruling on the merits nevertheless, its decision would not be independent of federal law. The Ninth Circuit interpreted the state court's order rejecting respondent's ineffective-assistance-of-trial-counsel claim as possibly resting on a ruling on the merits of the The record, however, reveals no such ruling. The state court did not even reach the merits of respondent's ineffective-assistance-of-trial-counsel claim, finding it waived because respondent had failed to raise it in prior petitions for postconviction relief. As an excuse, respondent asserted that his prior appellate and Rule 32 counsel, who were members of the Arizona Public Defender's office, had refused to file the claim because his trial counsel was also a member of the Public Defender's office. The state court did not find this excuse sufficient to overcome respondent's procedural *861 default. See App. H to Pet. for Cert. The state court explained that, because deputies in the Public Defender's office represent their clients and not their office, respondent's appellate lawyers would never have allowed "a colorable claim for ineffective assistance of counsel" to go unstated. The Ninth Circuit read the reference to a "colorable claim" as a conclusion that respondent's claim that his trial counsel had rendered ineffective assistance lacked merit, that is, as a comment on the merits of respondent's underlying In context, however, it is clear that the reference to "colorable claim" was used only as a rhetorical device for emphasizing the lack of any conflict of interest that might excuse respondent's waiver. Because the state court's determination that respondent waived his ineffective-assistance-of-counsel claim under Ariz. Rule Crim. Proc. 32.2(a)(3) did not require an examination of the merits of that claim, it was independent of federal law. We voice no opinion on whether respondent has provided valid cause to overcome his procedural default in state court. The Ninth Circuit's judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered
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Justice Douglas
| 1,974 | 10 |
dissenting
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Teleprompter Corp. v. Columbia Broadcasting System, Inc.
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https://www.courtlistener.com/opinion/108982/teleprompter-corp-v-columbia-broadcasting-system-inc/
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The Court today makes an extraordinary excursion into the legislative field. In Fortnightly the lower courts had found infringement of the copyright, but this Court reversed, holding that the CATV systems in Fortnightly were merely a "reception service" and were "on the viewer's side of the line," and therefore did not infringe the Copyright Act. They functioned by cable, reaching into towns which could not receive a TV signal due, say, to surrounding mountains, and expanded the reach of the TV signal beyond the confines of the area which a broadcaster's telecast reached. Whatever one thinks of Fortnightly, we should not take the next step necessary to give immunity to the present CATV organizations. Unlike those involved in Fortnightly, the present CATV's are functionally equivalent to a regular broadcaster. TV waves travel in straight lines, thus reaching a limited area on the earth's curved surface. This scientific fact has created for regulatory purposes separate television markets.[1] Those whose telecast *417 covers one market or geographic area are, under Fortnightly, estopped from saying that one who through CATV reaches by cable remote hidden valleys in that area, infringes the broadcaster's copyright. But the CATV's in the present cases go hundreds of miles, erect receiving stations or towers that pick up the programs of distant broadcasters, and carry them by cable into a wholly different area. In any realistic practical sense the importation of these remote programs into the new and different market is performing a broadcast function by the cable device. Respondents in No. 72-1628 exercised their copyright privileges and licensed performance of their works to particular broadcasters for telecast in the distant market. Petitioners in that case (hereafter petitioners) were not among those licensees. Yet they are granted use of the copyrighted material without payment of any fees. The Copyright Act, 17 U.S. C. 1 (c) and (d), gives the owner of a copyright "the exclusive right" to present the creation "in public for profit" and to control the manner or method by which it is "reproduced." A CATV that builds an antenna to pick up telecasts in Area B and then transmits it by cable to Area A is reproducing the copyrighted work, not pursuant to a license from the owner of the copyright, but by theft. That is not " ` "encouragement to the production of literary [or artistic] works of lasting benefit to the world" ' " that we extolled in Today's decision is at war with what Mr. Chief Justice Hughes, speaking for the Court in Fox Film described as the aim of Congress: "Copyright is
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Justice Douglas
| 1,974 | 10 |
dissenting
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Teleprompter Corp. v. Columbia Broadcasting System, Inc.
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https://www.courtlistener.com/opinion/108982/teleprompter-corp-v-columbia-broadcasting-system-inc/
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Fox Film described as the aim of Congress: "Copyright is a right exercised by the owner during the term at his pleasure and exclusively for his *418 own profit and forms the basis for extensive and profitable business enterprises. The advantage to the public is gained merely from the carrying out of the general policy in making such grants and not from any direct interest which the Government has in the use of the property which is the subject of the grants." The CATV system involved in the present cases performs somewhat like a network-affiliated broadcast station which imports network programs originated in distant telecast centers by microwave, off-the-air cable, precisely as petitioners do here.[2] Petitioners in picking up these distant signals are not managing a simple antenna reception service. They go hundreds of miles from the community they desire to serve, erect a receiving station and then select the programs from TV and radio stations in that distant area which they desire to distribute in their own distant market. If "function" is the key test as Fortnightly says, then functionally speaking petitioners are broadcasters; and their acts of piracy are flagrant violations of the Copyright Act. The original broadcaster is the licensor of his copyright and it is by virtue of that license that, say, a Los Angeles station is enabled lawfully to make its broadcasts. Petitioners receive today a license-free importation of programs from the Los Angeles market into Farmington, New Mexico, a distant second market. Petitioners not only rebroadcast the pirated copyrighted programs, they themselvesunlike those in Fortnightlyoriginate programs and finance their original programs[3] and their pirated programs by *419 sales of time to advertisers. That is the way the owner of these copyrighted programs receives value for his copyrights. CATV does the same thing; but it makes its fortune through advertising rates based in part upon pirated copyrighted programs. The Court says this is "a fact of no direct concern under the Copyright Act"; but the statement is itself the refutation of its truth. Rechanneling by CATV of the pirated programs robs the copyright owner of his chance for monetary rewards through advertising rates[4] on rebroadcasts in the distant area and gives those monetary rewards to the group that has pirated the program. We are advised by an amicus brief of the Motion Picture Association that films from TV telecasts are being imported by CATV into their own markets in competition with the same pictures licensed to TV stations in the area into which the CATVa nonpaying pirate of the filmsimports them. It would be difficult
|
Justice Douglas
| 1,974 | 10 |
dissenting
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Teleprompter Corp. v. Columbia Broadcasting System, Inc.
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https://www.courtlistener.com/opinion/108982/teleprompter-corp-v-columbia-broadcasting-system-inc/
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nonpaying pirate of the filmsimports them. It would be difficult to imagine a more flagrant violation of the Copyright Act. Since the Copyright Act is our only guide to law and justice in this case, it is difficult to see why CATV systems are free of copyright license fees, when they import programs from distant stations and transmit them to their paying customers in a distant market. That result reads the Copyright Act out of existence for CATV. That may or may not be desirable public policy. But it is a legislative decision that not even a rampant judicial activism should entertain. There is nothing in the Communications Act that qualifies, limits, modifies, or makes exception to the Copyright *420 Act. "Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but provisions of this chapter are in addition to such remedies." 47 U.S. C. 414. Moreover, the Federal Communications Commission has realized that it can "neither resolve, nor avoid" the problem under the Copyright Act, when it comes to CATV.[5] On January 14, 1974, the Cabinet Committee on Cable Communications headed by Clay T. Whitehead made its Report to the President. That Report emphasizes the need for the free flow of information in a society that honors "freedom of expression"; and it emphasizes that CATV is a means to that end and that CATV is so closely "linked to electronic data processing, telephone, television and radio broadcasting, the motion picture and music industries, and communications satellites," as to require "a consistent and coherent national policy." The Report rejects the regulatory framework of the Federal Communications Commission because it creates "the constant danger of unwarranted governmental influence or control over what people see and hear on television broadcast programming," The Report opts for a limitation of "the number of channels over which the cable operator has control of *421 program content and to require that the bulk of channels be leased to others." The Report recognizes that "copyright liability" is an important phase of the new regulatory program the Committee envisages, The pirating of programs sanctioned by today's decision is anathema to the philosophy of this Report: "Both equity and the incentives necessary for the free and competitive supply of programs require a system in which program retailers using cable channels negotiate and pay for the right to use programs and other copyrighted information. Individual or industry-wide negotiations for a license, or right, to use copyrighted material are the rule in all the other media and should be
|
Justice Douglas
| 1,974 | 10 |
dissenting
|
Teleprompter Corp. v. Columbia Broadcasting System, Inc.
|
https://www.courtlistener.com/opinion/108982/teleprompter-corp-v-columbia-broadcasting-system-inc/
|
the rule in all the other media and should be the rule in the cable industry. "As a matter of communications policy, rather than copyright policy, the program retailer who distributes television broadcast signals in addition to those provided by the cable operator should be subject to full copyright liability for such retransmissions. However, given the reasonable expectations created by current regulatory policy, the cable operator should be entitled to a non-negotiated, blanket license, conferred by statute, to cover his own retransmission of broadcast signals." The Whitehead Commission Report has of course no technical, legal bearing on the issue before us. But it strongly indicates how important to legislation is the sanctity of the copyright and how opposed to ethical business systems is the pirating of copyrighted materials. The Court can reach the result it achieves today only by "legislating" important features of the Copyright Act out of existence. As stated by THE CHIEF JUSTICE in United *422 "[t]he almost explosive development of CATV suggests the need of a comprehensive re-examination of the statutory scheme as it relates to this new development, so that the basic policies are considered by Congress and not left entirely to the Commission and the courts." That counsel means that if we do not override Fortnightly, we should limit it to its precise facts and leave any extension or modification to the Congress.
|
Justice Thomas
| 1,999 | 1 |
second_dissenting
|
Chicago v. Morales
|
https://www.courtlistener.com/opinion/118299/chicago-v-morales/
|
The duly elected members of the Chicago City Council enacted the ordinance at issue as part of a larger effort to prevent gangs from establishing dominion over the public streets. By invalidating Chicago's ordinance, I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery. The ordinance is not vague. "[A]ny fool would know that a particular category of conduct would be within [its] reach." Nor does it violate the Due Process Clause. The asserted "freedom to loiter for innocent purposes," ante, at 53 is in no way "`deeply rooted in this Nation's history and tradition,' " I dissent. I The human costs exacted by criminal street gangs are inestimable. In many of our Nation's cities, gangs have "[v]irtually *99 overtak[en] certain neighborhoods, contributing to the economic and social decline of these areas and causing fear and lifestyle changes among law-abiding residents." U. S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Assistance, Monograph: Urban Street Gang Enforcement 3 Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the Court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes. See U. S. Dept. of Justice, Attorney General's Report to the President, Coordinated Approach to the Challenge of Gang Violence: A Progress Report 1 ("From the small business owner who is literally crippled because he refuses to pay `protection' money to the neighborhood gang, to the families who are hostages within their homes, living in neighborhoods ruled by predatory drug trafficking gangs, the harmful impact of gang violence is both physically and psychologically debilitating"). The city of Chicago has suffered the devastation wrought by this national tragedy. Last year, in an effort to curb plummeting attendance, the Chicago Public Schools hired dozens of adults to escort children to school. The youngsters had become too terrified of gang violence to leave their homes alone. Martinez, Parents Paid to Walk Line Between Gangs and School, Chicago Tribune, Jan. 21, 1998, p. 1. The children's fears were not unfounded. In 1996, the Chicago Police Department estimated that there were 132 criminal street gangs in the city. Illinois Criminal Justice Information Authority, Research Bulletin: Street Gangs and Crime 4 Between 1987 and 1994, these gangs were involved in 63,141 criminal incidents, including 21,689 nonlethal violent crimes and 894 homicides.[1] Many *100 of these criminal incidents and homicides result from gang "turf battles," which take place on the public streets and place innocent residents in grave danger. See U. S. Dept. of
|
Justice Thomas
| 1,999 | 1 |
second_dissenting
|
Chicago v. Morales
|
https://www.courtlistener.com/opinion/118299/chicago-v-morales/
|
innocent residents in grave danger. See U. S. Dept. of Justice, Office of Justice Programs, National Institute of Justice, Research in brief, C. Block & R. Block, Street Gang Crime in Chicago 1 (Dec. 1993); U. S. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Justice Journal, J. Howell, Youth Gang Drug Trafficking and Homicide: Policy and Program Implications ; see also Testimony of Steven R. Wiley, Chief, Violent Crimes and Major Offenders Section, FBI, Hearing on S. 54 before the Senate Committee on the Judiciary, 105th Cong., 1st Sess., 13 ("While street gangs may specialize in entrepreneurial activities like drug-dealing, their gang-related lethal violence is more likely to grow out of turf conflicts"). Before enacting its ordinance, the Chicago City Council held extensive hearings on the problems of gang loitering. Concerned citizens appeared to testify poignantly as to how gangs disrupt their daily lives. Ordinary citizens like Ms. D'Ivory Gordon that she struggled just to walk to work: "When I walk out my door, these guys are out there "They watch you. They know where you live. They know what time you leave, what time you come home. I am afraid of them. I have even come to the point now that I carry a meat cleaver to work with me ". I don't want to hurt anyone, and I don't want to be hurt. We need to clean these corners up. Clean these communities up and take it back from them." Transcript of Proceedings before the City Council of *101 Chicago, Committee on Police and Fire 66-67 (May 15, 1992) (hereinafter Transcript). Eighty-eight-year-old Susan Mary Jackson echoed her sentiments, testifying: "We used to have a nice neighborhood. We don't have it anymore I am scared to go out in the daytime. [Y]ou can't pass because they are standing. I am afraid to go to the store. I don't go to the store because I am afraid. At my age if they look at me real hard, I be ready to holler." Another long-time resident testified: "I have never had the terror that I feel everyday when I walk down the streets of Chicago. "I have had my windows broken out. I have had guns pulled on me. I have been threatened. I get intimidated on a daily basis, and it's come to the point where I say, well, do I go out today. Do I put my ax in my briefcase. Do I walk around dressed like a bum so I am not looking rich or got any money or anything like that." Following these
|
Justice Thomas
| 1,999 | 1 |
second_dissenting
|
Chicago v. Morales
|
https://www.courtlistener.com/opinion/118299/chicago-v-morales/
|
or got any money or anything like that." Following these hearings, the council found that "criminal street gangs establish control over identifiable areas by loitering in those areas and intimidating others from entering those areas." App. to Pet. for Cert. a. It further found that the mere presence of gang members "intimidate[s] many law abiding citizens" and "creates a justifiable fear for the safety of persons and property in the area." It is the product of this democratic processthe council's attempt to address these social illsthat we are asked to pass judgment upon today. II As part of its ongoing effort to curb the deleterious effects of criminal street gangs, the citizens of Chicago sensibly decided to return to basics. The ordinance does nothing more than confirm the well-established principle that the police *102 have the duty and the power to maintain the public peace, and, when necessary, to disperse groups of individuals who threaten it. The plurality, however, concludes that the city's commonsense effort to combat gang loitering fails constitutional scrutiny for two separate reasonsbecause it infringes upon gang members' constitutional right to "loiter for innocent purposes," ante, at 53, and because it is vague on its face, ante, at 55. A majority of the Court endorses the latter conclusion. I respectfully disagree. A We recently reconfirmed that "[o]ur Nation's history, legal traditions, and practices provide the crucial `guide posts for responsible decision-making' that direct and restrain our exposition of the Due Process Clause." 521 U. S., at ). Only laws that infringe "those fundamental rights and liberties which are, objectively, `deeply rooted in this Nation's history and tradition' " offend the Due Process Clause. at 720-. The plurality asserts that "the freedom to loiter for innocent purposes is part of the `liberty' protected by the Due Process Clause of the Fourteenth Amendment." Ante, at 53. Yet it acknowledgesas it mustthat "antiloitering ordinances have long existed in this country." Ante, at 53, n. 20; see also ("Loitering and vagrancy statutes have been utilized throughout American history in an attempt to prevent crime by removing `undesirable persons' from public before they have the opportunity to engage in criminal activity"). In derogation of the framework we articulated only two Terms ago in the plurality asserts that this history fails to "persuad[e] us that the right to engage in loitering that is entirely harmless is not a part of the liberty protected by the Due Process Clause." Ante, at 54, *103 n. 20. Apparently, the plurality believes it sufficient to rest on the proposition that antiloitering laws represent an anachronistic throwback to
|
Justice Thomas
| 1,999 | 1 |
second_dissenting
|
Chicago v. Morales
|
https://www.courtlistener.com/opinion/118299/chicago-v-morales/
|
the proposition that antiloitering laws represent an anachronistic throwback to an earlier, less sophisticated, era. For example, it expresses concern that some antivagrancy laws carried the penalty of slavery. But this fact is irrelevant to our analysis of whether there is a constitutional right to loiter for innocent purposes. This case does not involve an antiloitering law carrying the penalty of slavery. The law at issue in this case criminalizes the failure to obey a police officer's order to disperse and imposes modest penalties, such as a fine of up to $500 and a prison sentence of up to six months. The plurality's sweeping conclusion that this ordinance infringes upon a liberty interest protected by the Fourteenth Amendment's Due Process Clause withers when exposed to the relevant history: Laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest. See generally C. Ribton-Turner, A History of Vagrants and Vagrancy and Beggars and Begging (discussing history of English vagrancy laws); see also The American colonists enacted laws modeled upon the English vagrancy laws, and at the time of the founding, state and local governments customarily criminalized loitering and other forms of vagrancy.[2] Vagrancy laws *104 were common in the decades preceding the ratification of the Fourteenth Amendment,[3] and remained on the books long after.[4] *105 Tellingly, the plurality cites only three cases in support of the asserted right to "loiter for innocent purposes." See ante, at 53-54. Of those, only onedecided more than 100 years after the ratification of the Fourteenth Amendment actually addressed the validity of a vagrancy ordinance. That case, contains some dicta that can be read to support the fundamental right that the plurality asserts.[5] However, the Court in did not undertake the now-accepted analysis applied in substantive due process casesit did not look to tradition to define the rights protected by the Due Process Clause. In any event, a careful reading of the opinion reveals that the Court never said anything about a constitutional right. The Court's holding was that the antiquarian language employed in the vagrancy ordinance at issue was unconstitutionally vague. See Even assuming, then, that was correctly decided as an original mattera doubtful propositionit *106 does not compel the conclusion that the Constitution protects the right to loiter for innocent purposes. The plurality's contrary assertion calls to mind the warning that "[t]he Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the
|
Justice Thomas
| 1,999 | 1 |
second_dissenting
|
Chicago v. Morales
|
https://www.courtlistener.com/opinion/118299/chicago-v-morales/
|
or no cognizable roots in the language or even the design of the Constitution. [We] should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare." When "the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority." B The Court concludes that the ordinance is also unconstitutionally vague because it fails to provide adequate standards to guide police discretion and because, in the plurality's view, it does not give residents adequate notice of how to conform their conduct to the confines of the law. I disagree on both counts. 1 At the outset, it is important to note that the ordinance does not criminalize loitering per se. Rather, it penalizes loiterers' failure to obey a police officer's order to move along. A majority of the Court believes that this scheme vests too much discretion in police officers. Nothing could be further from the truth. Far from according officers too much discretion, the ordinance merely enables police officers to fulfill one of their traditional functions. Police officers are not, and have never been, simply enforcers of the criminal law. They wear other hatsimportantly, they have long been vested with the responsibility for preserving the public peace. See, e. g., O. Allen, Duties and Liabilities of Sheriffs *107 59 (1845) ("As the principal conservator of the peace in his county, and as the calm but irresistible minister of the law, the duty of the Sheriff is no less important than his authority is great"); E. Freund, Police Power 86, p. 87 (1904) ("The criminal law deals with offenses after they have been committed, the police power aims to prevent them. The activity of the police for the prevention of crime is partly such as needs no special legal authority"). Nor is the idea that the police are also peace officers simply a quaint anachronism. In most American jurisdictions, police officers continue to be obligated, by law, to maintain the public peace.[6] In their role as peace officers, the police long have had the authority and the duty to order groups of individuals who threaten the public peace to disperse. For example, the 1887 police manual for the city of New York provided: *108 "It is hereby made the duty of the Police Force at all times of day and night, and the members of such Force are hereby there unto empowered, to especially preserve the public peace, prevent crime, detect and
|
Justice Thomas
| 1,999 | 1 |
second_dissenting
|
Chicago v. Morales
|
https://www.courtlistener.com/opinion/118299/chicago-v-morales/
|
to especially preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages, and assemblages which obstruct the free passage of public streets, side- walks, parks and places. " Manual Containing the Rules and Regulations of the Police Department of the City of New York, Rule 414 (emphasis added). See also J. Crocker, Duties of Sheriffs, Coroners and Constables 48, p. 33 (2d ed. rev. 1871) ("Sheriffs are, ex officio, conservators of the peace within their respective counties, and it is their duty, as well as that of all constables, coroners, marshals and other peace officers, to prevent every breach of the peace, and to suppress every unlawful assembly, affray or riot which may happen in their presence" (emphasis added)). The authority to issue dispersal orders continues to play a commonplace and crucial role in police operations, particularly in urban areas.[7] Even the ABA Standards for *109 Criminal Justice recognize that "[i]n day-to-day police experience there are innumerable situations in which police are called upon to order people not to block the sidewalk, not to congregate in a given place, and not to `loiter' The police may suspect the loiterer of considering engaging in some form of undesirable conduct that can be at least temporarily frustrated by ordering him or her to `move on.' " Standard 1-3.4(d), p. 1.88, and comments (2d ed. 1980, Supp. 1986).[8] In order to perform their peacekeeping responsibilities satisfactorily, the police inevitably must exercise discretion. Indeed, by empowering them to act as peace officers, the law assumes that the police will exercise that discretion responsibly and with sound judgment. That is not to say that the law should not provide objective guidelines for the police, but simply that it cannot rigidly constrain their every action. By directing a police officer not to issue a dispersal order unless he "observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place," App. to Pet. for Cert. 61a, Chicago's ordinance strikes an appropriate balance between those two extremes. Just as we trust officers to rely on their experience and expertise in order to make spur-of-the-moment determinations about amorphous legal standards such as "probable cause" * and "reasonable suspicion," so we must trust them to determine whether a group of loiterers contains individuals (in this case members of criminal street gangs) whom the city has determined threaten the public peace. See ("Articulating precisely what `reasonable suspicion' and `probable cause' mean is not possible. They are commonsense, nontechnical conceptions that deal with the
|
Justice Thomas
| 1,999 | 1 |
second_dissenting
|
Chicago v. Morales
|
https://www.courtlistener.com/opinion/118299/chicago-v-morales/
|
possible. They are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. [O]ur cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists" (citations and internal quotation marks omitted)). In sum, the Court's conclusion that the ordinance is impermissibly vague because it "`necessarily entrusts lawmaking to the momentto-moment judgment of the policeman on his beat,' " ante, at cannot be reconciled with common sense, longstanding police practice, or this Court's Fourth Amendment jurisprudence. The illogic of the Court's position becomes apparent when it opines that the ordinance's dispersal provision "would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members." Ante, at 62 See also ante, at 67 (O'Connor, J., concurring in part and concurring in judgment) (endorsing Court's proposal). With respect, if the Court believes that the ordinance is vague as written, this suggestion would not cure the vagueness problem. First, although the Court has suggested that a scienter requirement may mitigate a vagueness problem "with respect to the adequacy of notice to the complainant that his conduct is proscribed," Hoffman the alternative proposal does not incorporate a scienter requirement. If the ordinance's prohibition were limited *111 to loitering with "an apparently harmful purpose," the criminality of the conduct would continue to depend on its external appearance, rather than the loiterer's state of mind. See Black's Law Dictionary 1345 (6th ed. 1990) (scienter "is frequently used to signify the defendant's guilty knowledge"). For this reason, the proposed alternative would neither satisfy the standard suggested in Hoffman Estates nor serve to channel police discretion. Indeed, an ordinance that required officers to ascertain whether a group of loiterers have "an apparently harmful purpose" would require them to exercise more discretion, not less. Furthermore, the ordinance in its current formrequiring the dispersal of groups that contain at least one gang memberactually vests less discretion in the police than would a law requiring that the police disperse groups that contain only gang members. Currently, an officer must reasonably suspect that one individual is a member of a gang. Under the plurality's proposed law, an officer would be required to make such a determination multiple times. In concluding that the ordinance adequately channels police discretion, I do not suggest that a police officer enforcing the Gang Congregation Ordinance will never make a
|
Justice Thomas
| 1,999 | 1 |
second_dissenting
|
Chicago v. Morales
|
https://www.courtlistener.com/opinion/118299/chicago-v-morales/
|
officer enforcing the Gang Congregation Ordinance will never make a mistake. Nor do I overlook the possibility that a police officer, acting in bad faith, might enforce the ordinance in an arbitrary or discriminatory way. But our decisions should not turn on the proposition that such an event will be anything but rare. Instances of arbitrary or discriminatory enforcement of the ordinance, like any other law, are best addressed when (and if) they arise, rather than prophylactically through the disfavored mechanism of a facial challenge on vagueness grounds. See United *112 2 The plurality's conclusion that the ordinance "fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted," ante, at is similarly untenable. There is nothing "vague" about an order to disperse.[9] While "we can never expect mathematical certainty from our language," itis safe to assume that the vast majority of people who are ordered by the police to "disperse and remove themselves from the area" will have little difficulty understanding how to comply. App. to Pet. for Cert. 61a. Assuming that we are also obligated to consider whether the ordinance places individuals on notice of what conduct might subject them to such an order, respondents in this facial challenge bear the weighty burden of establishing that the statute is vague in all its applications, "in the sense that no standard of conduct is specified at all." I subscribe to the view of retired Justice White"If any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional on its face." Kolender, 461 U. S., at -371 This is certainly such a case. As the Illinois Supreme Court recognized, "persons of ordinary intelligence may maintain a common and accepted *113 meaning of the word `loiter.' " Justice Stevens' contrary conclusion is predicated primarily on the erroneous assumption that the ordinance proscribes large amounts of constitutionally protected and/or innocent conduct. See ante, at 55, 56-57, As already the ordinance does not proscribe constitutionally protected conductthere is no fundamental right to loiter. It is also anomalous to characterize loitering as "innocent" conduct when it has been disfavored throughout American history. When a category of conduct has been consistently criminalized, it can hardly be considered "innocent." Similarly, when a term has long been used to describe criminal conduct, the need to subject it to the "more stringent vagueness test" suggested in Hoffman Estates, 455 U. S., at dissipates, for
|
Justice Thomas
| 1,999 | 1 |
second_dissenting
|
Chicago v. Morales
|
https://www.courtlistener.com/opinion/118299/chicago-v-morales/
|
suggested in Hoffman Estates, 455 U. S., at dissipates, for there is no risk of a trap for the unwary. The term "loiter" is no different from terms such as "fraud," "bribery," and "perjury." We expect people of ordinary intelligence to grasp the meaning of such legal terms despite the fact that they are arguably imprecise.[10] The plurality also concludes that the definition of the term loiter"to remain in any one place with no apparent purpose," *114 see fails to provide adequate notice.[11] "It is difficult to imagine," the plurality posits, "how any citizen of the city of Chicago standing in a public placewould know if he or she had an `apparent purpose.' " Ante, at 56-57. The plurality underestimates the intellectual capacity of the citizens of Chicago. Persons of ordinary intelligence are perfectly capable of evaluating how outsiders perceive their conduct, and here "[i]t is self-evident that there is a whole range of conduct that anyone with at least a semblance of common sense would know is [loitering] and that would be covered by the statute." See Members of a group standing on the corner staring blankly into space, for example, are likely well aware that passersby would conclude that they have "no apparent purpose." In any event, because this is a facial challenge, the plurality's ability to hypothesize that some individuals, in some circumstances, may be unable to ascertain how their actions appear to outsiders is irrelevant to our analysis. Here, we are asked to determine whether the ordinance is "vague in all of its applications." Hoffman Estates, The answer is unquestionably no. * * * Today, the Court focuses extensively on the "rights" of gang members and their companions. It can safely do so the people who will have to live with the consequences of *115 today's opinion do not live in our neighborhoods. Rather, the people who will suffer from our lofty pronouncements are people like Ms. Susan Mary Jackson; people who have seen their neighborhoods literally destroyed by gangs and violence and drugs. They are good, decent people who must struggle to overcome their desperate situation, against all odds, in order to raise their families, earn a living, and remain good citizens. As one resident described: "There is only about maybe one or two percent of the people in the city causing these problems maybe, but it's keeping 98 percent of us in our houses and off the streets and afraid to shop." Transcript 126. By focusing exclusively on the imagined "rights" of the two percent, the Court today has denied our most vulnerable citizens
|
Justice Breyer
| 2,018 | 2 |
dissenting
|
Ohio v. American Express Co.
|
https://www.courtlistener.com/opinion/4510625/ohio-v-american-express-co/
|
For more than 120 years, the American economy has prospered by charting a middle path between pure laissez- faire and state capitalism, governed by an antitrust law “dedicated to the principle that markets, not individual firms and certainly not political power, produce the opti mal mixture of goods and services” 1 P Areeda & H Hovenkamp, Antitrust Law ¶100b, p 4 (4th ed 2013) (Areeda & Hovenkamp) By means of a strong antitrust law, the United States has sought to avoid the danger of monopoly capitalism Long gone, we hope, are the days when the great trusts presided unfettered by competition over the American economy This lawsuit is emblematic of the American approach Many governments around the world have responded to concerns about the high fees that credit-card companies often charge merchants by regulating such fees directly See GAO, Credit and Debit Cards: Federal Entities Are Taking Actions to Limit Their Interchange Fees, but Additional Revenue Collection Cost Savings May Exist 31–35 (GAO–08–558, 2008) The United States has not followed that approach The Government instead filed this lawsuit, which seeks to restore market competition over credit-card merchant fees by eliminating a contract 2 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting ual barrier with anticompetitive effects The majority rejects that effort But because the challenged contractual term clearly has serious anticompetitive effects, I dissent I I agree with the majority and the parties that this case is properly evaluated under the three-step “rule of reason” that governs many antitrust lawsuits Ante, –10 Under that approach, a court looks first at the agreement or restraint at issue to assess whether it has had, or is likely to have, anticompetitive effects In doing so, the court normally asks whether the restraint may tend to impede competition and, if so, whether those who have entered into that restraint have sufficient economic or commercial power for the agreement to make a negative difference See at –461 Sometimes, but not al ways, a court will try to determine the appropriate market (the market that the agreement affects) and determine whether those entering into that agreement have the power to raise prices the competitive level in that market See It is important here to understand that in cases under of the Sherman Act (unlike in cases challenging a mer ger under of the Clayton Act, 15 US C 8), it may well be unnecessary to undertake a sometimes complex, market power inquiry: “Since the purpose [in a Sherman Act case] of the inquiries into market power is [simply] to deter mine whether an arrangement has the
|
Justice Breyer
| 2,018 | 2 |
dissenting
|
Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510625/ohio-v-american-express-co/
|
is [simply] to deter mine whether an arrangement has the potential for genuine adverse effects on competition, ‘proof of actual detrimental effects, such as a reduction in output,’ can obviate the need for an inquiry into market power, which is but a ‘surrogate for detrimental effects’ ” Indiana Federation of –461 (quoting 7 P Areeda, Antitrust Law ¶1511, p 429 (3d Cite as: 585 U S (2018) 3 BREYER, J, dissenting ed 1986)) Second (as treatise writers summarize the case law), if an antitrust plaintiff meets the initial burden of showing that an agreement will likely have anticompetitive effects, normally the “burden shifts to the defendant to show that the restraint in fact serves a legitimate objective” 7 Areeda & Hovenkamp ¶1504b, at 415; see California Dental ; (BREYER, J, dissenting) Third, if the defendant successfully bears this burden, the antitrust plaintiff may still carry the day by showing that it is possible to meet the legitimate objective in less restrictive ways, or, perhaps by showing that the legiti mate objective does not outweigh the harm that competi tion will suffer, ie, that the agreement “on balance” re mains unreasonable 7 Areeda & Hovenkamp ¶1507a, at 442 Like the Court of Appeals and the parties, the majority addresses only the first step of that three-step framework Ante, at 10 II A This case concerns the credit-card business As the majority explains, ante, at 2, that business involves the selling of two different but related card services First, when a shopper uses a credit card to buy something from a participating merchant, the credit-card company pays the merchant the amount of money that the merchant’s cus tomer has charged to his card and charges the merchant a fee, say 5%, for that speedy-payment service I shall refer to that kind of transaction as a merchant-related card service Second, the credit-card company then sends a bill to the merchant’s customer, the shopper who holds the card; and the shopper pays the card company the sum that merchant charged the shopper for the goods or services he 4 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting or she bought The cardholder also often pays the card company a fee, such as an annual fee for the card or an interest charge for delayed payment I shall call that kind of transaction a shopper-related card service The credit- card company can earn revenue from the sale (directly or indirectly) of each of these services: (1) speedy payment for merchants, and (2) credit for shoppers (I say “indirectly” to reflect the fact that card companies
|
Justice Breyer
| 2,018 | 2 |
dissenting
|
Ohio v. American Express Co.
|
https://www.courtlistener.com/opinion/4510625/ohio-v-american-express-co/
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(I say “indirectly” to reflect the fact that card companies often create or use networks of banks as part of the process—but I have found nothing here suggesting that that fact makes a significant difference to my analysis) Sales of the two basic card services are related A shop per can pay for a purchase with a particular credit card only if the merchant has signed up for merchant-related card services with the company that issued the credit card that the shopper wishes to use A firm in the credit-card business is therefore unlikely to make money unless quite a few merchants agree to accept that firm’s card and quite a few shoppers agree to carry and use it In general, the more merchants that sign up with a particular card com pany, the more useful that card is likely to prove to shop pers and so the more shoppers will sign up; so too, the more shoppers that carry a particular card, the more useful that card is likely to prove to merchants (as it obviously helps them obtain the shoppers’ business) and so the more merchants will sign up Moreover, as a rough rule of thumb (and assuming constant charges), the larger the networks of paying merchants and paying shoppers that a card firm maintains, the larger the revenues that the firm will likely receive, since more payments will be processed using its cards Thus, it is not surprising that a card company may offer shoppers incentives (say, points redeemable for merchandise or travel) for using its card or that a firm might want merchants to accept its card exclusively Cite as: 585 U S (2018) 5 BREYER, J, dissenting B This case focuses upon a practice called “steering” American Express has historically charged higher mer chant fees than its competitors App to Pet for Cert 173a–176a Hence, fewer merchants accept American Express’ cards than its competitors’ at 184a–187a But, perhaps because American Express cardholders are, on average, wealthier, higher-spending, or more loyal to American Express than other cardholders, vast numbers of merchants still accept American Express cards See at 156a, 176a–177a, 184a–187a Those who do, however, would (in order to avoid the higher American Express fee) often prefer that their customers use a different card to charge a purchase Thus, the merchant has a monetary incentive to “steer” the customer towards the use of a different card A merchant might tell the customer, for example, “American Express costs us more,” or “please use Visa if you can,” or “free shipping if you use Discover” See at 100a–102a
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dissenting
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Ohio v. American Express Co.
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or “free shipping if you use Discover” See at 100a–102a Steering makes a difference, because without it, the shopper does not care whether the merchant pays more to American Express than it would pay to a different card company—the shopper pays the same price either way But if steering works, then American Express will find it more difficult to charge more than its competitors for merchant-related services, because merchants will re spond by steering their customers, encouraging them to use other cards Thus, American Express dislikes steer ing; the merchants like it; and the shoppers may benefit from it, whether because merchants will offer them incen tives to use less expensive cards or in the form of lower retail prices overall See 2a, 97a–104a In response to its competitors’ efforts to convince mer chants to steer shoppers to use less expensive cards, American Express tried to stop, or at least to limit, steer ing by placing antisteering provisions in most of its con 6 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting tracts with merchants It called those provisions “nondis crimination provisions” They prohibited steering of the forms I have described (and others as well) See 5a–96a, 100a–101a After placing them in its agree ments, American Express found it could maintain, or even raise, its higher merchant prices without losing too many transactions to other firms at 195a–198a These agreements—the “nondiscrimination provisions”—led to this lawsuit C In 2010 the United States and 17 States brought this antitrust case against American Express They claimed that the “nondiscrimination provisions” in its contracts with merchants created an unreasonable restraint of trade (Initially Visa and MasterCard were also defend ants, but they entered into consent judgments, dropping similar provisions from their contracts with merchants) After a 7-week bench trial, the District Court entered judgment for the Government, setting forth its findings of fact and conclusions of law in a 97-page opinion Because the majority devotes little attention to the District Court’s detailed factual findings, I will summarize some of the more significant ones here Among other things, the District Court found that beginning in 2005 and during the next five years, American Express raised the prices it charged merchants on 20 separate occasions See at 195–196 In doing so, American Express did not take account of the possibility that large merchants would respond to the price increases by encouraging shop pers to use a different credit card because the nondiscrim ination provisions prohibited any such steering at 215 The District Court pointed to merchants’ testimony stating that, had it not been for those provisions,
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dissenting
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Ohio v. American Express Co.
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testimony stating that, had it not been for those provisions, the large merchants would have responded to the price increases by Cite as: 585 U S (2018) 7 BREYER, J, dissenting encouraging customers to use other, less-expensive cards The District Court also found that even though Ameri can Express raised its merchant prices 20 times in this 5 year period, it did not lose the business of any large mer chant Nor did American Express increase benefits (or cut credit-card prices) to American Express cardholders in tandem with the merchant price increases Even had there been no direct evidence of injury to competition, American Express’ ability to raise merchant prices without losing any meaningful market share, in the District Court’s view, showed that American Express possessed power in the relevant market See at 195 The District Court also found that, in the absence of the provisions, prices to merchants would likely have been lower It wrote that in the late 1990’s, Discover, one of American Express’ competitors, had tried to develop a business model that involved charging lower prices to merchants than the other companies charged Discover then invited each “merchant to save money by shifting volume to Discover,” while simultaneously offer ing merchants additional discounts “if they would steer customers to Discover” The court determined that these efforts failed because of American Express’ (and the other card companies’) “nondiscrimination provisions” These provisions, the court found, “denied merchants the ability to express a preference for Discover or to employ any other tool by which they might steer share to Discov er’s lower-priced network” Because the provi sions eliminated any advantage that lower prices might produce, Discover “abandoned its low-price business model” and raised its merchant fees to match those of its competitors This series of events, the court con cluded was “emblematic of the harm done to the competi tive process” by the “nondiscrimination provisions” 8 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting The District Court added that it found no offsetting pro- competitive benefit to shoppers at 225–238 Indeed, it found no offsetting benefit of any kind See American Express appealed, and the U S Court of Appeals for the Second Circuit held in its favor 838 F3d 179 (2016) The Court of Appeals did not reject any fact found by the District Court as “clearly erroneous” See Fed Rule Civ Proc 52(a)(6) Rather, it concluded that the District Court had erred in step 1 of its rule-of-reason analysis by failing to account for what the Second Circuit called the credit-card business’s “two-sided market” (or “two-sided platform”) –186,
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Justice Breyer
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dissenting
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Ohio v. American Express Co.
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called the credit-card business’s “two-sided market” (or “two-sided platform”) –186, 196–200 III The majority, like the Court of Appeals, reaches only step 1 in its “rule of reason” analysis Ante, at 10 To repeat, that step consists of determining whether the challenged “nondiscrimination provisions” have had, or are likely to have, anticompetitive effects See Indiana Federation of 476 US, at Do those provi sions tend to impede competition? And if so, does Ameri can Express, which imposed that restraint as a condition of doing business with its merchant customers, have suffi cient economic or commercial power for the provision to make a negative difference? See –461 A Here the District Court found that the challenged provi sions have had significant anticompetitive effects In particular, it found that the provisions have limited or prevented price competition among credit-card firms for the business of merchants 88 F Supp 3d, That conclusion makes sense: In the provisions, American Express required the merchants to agree not to encourage customers to use American Express’ competitors’ credit cards, even cards from those competitors, such as Discover, Cite as: 585 U S (2018) 9 BREYER, J, dissenting that intended to charge the merchants lower prices See By doing so, American Express has “dis rupt[ed] the normal price-setting mechanism” in the mar ket As a result of the provisions, the District Court found, American Express was able to raise mer chant prices repeatedly without any significant loss of business, because merchants were unable to respond to such price increases by encouraging shoppers to pay with other cards The provisions also meant that competitors like Discover had little incentive to lower their merchant prices, because doing so did not lead to any additional market share The provisions thereby “suppress[ed] [American Express’] competitors’ incentives to offer lower prices resulting in higher profit-maximizing prices across the network services market” Consumers throughout the economy paid higher retail prices as a result, and they were denied the opportunity to accept incentives that merchants might otherwise have offered to use less-expensive cards at 216, 220 I should think that, considering step 1 alone, there is little more that need be The majority, like the Court of Appeals, says that the District Court should have looked not only at the market for the card companies’ merchant-related services but also at the market for the card companies’ shopper-related services, and that it should have combined them, treating them as a single market Ante, at 14–15; 838 F3d, at 197 But I am not aware of any support for that view in antitrust law Indeed, this Court
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dissenting
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support for that view in antitrust law Indeed, this Court has held to the contrary In Times-Picayune Publishing Co v United States, 345 US 594, 610 (1953), the Court held that an antitrust court should begin its definition of a relevant market by focusing narrowly on the good or service directly affected by a challenged restraint The Government in that case claimed that a newspaper’s advertising policy violated the Sherman Act’s “rule of reason” See In support of 10 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting that argument, the Government pointed out, and the District Court had held, that the newspaper dominated the market for the sales of newspapers to readers in New Orleans, where it was the sole morning daily newspaper But this Court reversed We that “every newspaper is a dual trader in separate though interde pendent markets; it sells the paper’s news and advertising content to its readers; in effect that readership is in turn sold to the buyers of advertising space” We then added: “This case concerns solely one of those markets The Publishing Company stands accused not of tying sales to its readers but only to buyers of general and classi fied space in its papers For this reason, dominance in the advertising market, not in readership, must be de cisive in gauging the legality of the Company’s unit plan” Here, American Express stands accused not of limiting or harming competition for shopper-related card services, but only of merchant-related card services, because the chal lenged contract provisions appear only in American Ex press’ contracts with merchants That is why the District Court was correct in considering, at step 1, simply whether the agreement had diminished competition in merchant-related services B The District Court did refer to market definition, and the majority does the same Ante, at 11–15 And I recog nize that properly defining a market is often a complex business Once a court has identified the good or service directly restrained, as Times-Picayune Publishing Co requires, it will sometimes add to the relevant market what economists call “substitutes”: other goods or services that are reasonably substitutable for that good or service Cite as: 585 U S (2018) 11 BREYER, J, dissenting See, eg, United States v E I du Pont de Nemours & Co, 351 US 377, (explaining that cellophane market includes other, substitutable flexible wrapping materials as well) The reason that substitutes are in cluded in the relevant market is that they restrain a firm’s ability to profitably raise prices, because customers will switch to the substitutes rather than pay the higher
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Justice Breyer
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dissenting
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will switch to the substitutes rather than pay the higher prices See 2B Areeda & Hovenkamp ¶561, at 378 But while the market includes substitutes, it does not include what economists call complements: goods or ser vices that are used together with the restrained product, but that cannot be substituted for that product See ¶565a, at 429; Eastman Kodak Co v Image Technical Services, Inc, 504 US 451, An example of complements is gasoline and tires A driver needs both gasoline and tires to drive, but they are not substitutes for each other, and so the sale price of tires does not check the ability of a gasoline firm (say a gasoline monopolist) to raise the price of gasoline competitive levels As a treatise on the subject states: “Grouping complementary goods into the same market” is “economic nonsense,” and would “undermin[e] the rationale for the policy against monopolization or collusion in the first place” 2B Areeda & Hovenkamp ¶565a, at 431 Here, the relationship between merchant-related card services and shopper-related card services is primarily that of complements, not substitutes Like gasoline and tires, both must be purchased for either to have value Merchants upset about a price increase for merchant- related services cannot avoid that price increase by becom ing cardholders, in the way that, say, a buyer of newspa per advertising can switch to television advertising or direct mail in response to a newspaper’s advertising price increase The two categories of services serve fundamen tally different purposes And so, also like gasoline and tires, it is difficult to see any way in which the price of 12 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting shopper-related services could act as a check on the card firm’s sale price of merchant-related services If anything, a lower price of shopper-related card services is likely to cause more shoppers to use the card, and increased shop per popularity should make it easier for a card firm to raise prices to merchants, not harder, as would be the case if the services were substitutes Thus, unless there is something unusual about this case—a possibility I discuss below, see infra, at 13–20—there is no justification for treating shopper-related services and merchant-related services as if they were part of a single market, at least not at step 1 of the “rule of reason” C Regardless, a discussion of market definition was legally unnecessary at step 1 That is because the District Court found strong direct evidence of anticompetitive effects flowing from the challenged restraint 88 F Supp 3d, at 207–224 As I this evidence included
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Justice Breyer
| 2,018 | 2 |
dissenting
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Ohio v. American Express Co.
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F Supp 3d, at 207–224 As I this evidence included Discover’s efforts to break into the credit-card business by charging lower prices for merchant-related services, only to find that the “nondiscrimination provisions,” by pre venting merchants from encouraging shoppers to use Discover cards, meant that lower merchant prices did not result in any additional transactions using Discover credit cards 88 F Supp 3d, –214 The direct evidence also included the fact that American Express raised its merchant prices 20 times in five years without losing any appreciable market share at 195–198, 208–212 It also included the testimony of numerous merchants that they would have steered shoppers away from American Express cards in response to merchant price increases (thereby checking the ability of American Express to raise prices) had it not been for the nondiscrimination provi sions See at 221–222 It included the factual finding that American Express “did not even account for the pos Cite as: 585 U S (2018) 13 BREYER, J, dissenting sibility that [large] merchants would respond to its price increases by attempting to shift share to a competitor’s network” because the nondiscrimination provisions pro hibited steering It included the District Court’s ultimate finding of fact, not overturned by the Court of Appeals, that the challenged provisions “were integral to” American Express’ “[price] increases and thereby caused merchants to pay higher prices” As I this Court has stated that “[s]ince the purpose of the inquiries into market definition and market power is to determine whether an arrangement has the potential for genuine adverse effects on competi tion, proof of actual detrimental effects can obviate the need for” those inquiries Indiana Federation of 476 US, –461 (internal quotation marks omitted) That statement is fully applicable here Doubts about the District Court’s market-definition analysis are beside the point in the face of the District Court’s findings of actual anticompetitive harm The majority disagrees that market definition is irrele vant See ante, at 11–12, and n 7 The majority explains that market definition is necessary because the nondis crimination provisions are “vertical restraints” and “[v]ertical restraints often pose no risk to competition unless the entity imposing them has market power, which cannot be evaluated unless the Court first determines the relevant market” Ante, at 11, n 7 The majority thus, in a footnote, seems categorically to exempt vertical re straints from the ordinary “rule of reason” analysis that has applied to them since the Sherman Act’s enactment in 1890 The majority’s only support for this novel exemption is Leegin Creative Leather Products, Inc v PSKS, Inc, 551 US 877 But
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Justice Breyer
| 2,018 | 2 |
dissenting
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Ohio v. American Express Co.
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Leather Products, Inc v PSKS, Inc, 551 US 877 But Leegin held that the “rule of reason” applied to the vertical restraint at issue in that case See at 898–899 It nothing to suggest that vertical restraints are not subject to the usual “rule of 14 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting reason” analysis See also infra, at 24 One critical point that the majority’s argument ignores is that proof of actual adverse effects on competition is, a fortiori, proof of market power Without such power, the restraints could not have brought about the anticompeti tive effects that the plaintiff proved See Indiana Federa- tion of (“[T]he purpose of the in quiries into market definition and market power is to determine whether an arrangement has the potential for genuine adverse effects on competition” (emphasis added)) The District Court’s findings of actual anticom petitive harm from the nondiscrimination provisions thus showed that, whatever the relevant market might be, American Express had enough power in that market to cause that harm There is no reason to require a separate showing of market definition and market power under such circumstances And so the majority’s extensive discussion of market definition is legally unnecessary D The majority’s discussion of market definition is also wrong Without raising any objection in general with the longstanding approach I describe at 10–11, the majority agrees with the Court of Appeals that the market for American Express’ card services is special because it is a “two-sided transaction platform” Ante, at 2–5, 12–15 The majority explains that credit-card firms connect two distinct groups of customers: First, merchants who accept credit cards, and second, shoppers who use the cards Ante, at 2; 838 F3d, at 186 The majority adds that “no credit-card transaction can occur unless both the merchant and the cardholder simultaneously agree to use to the same credit-card network” Ante, at 3 And it explains that the credit-card market involves “indirect network effects,” by which it means that shoppers want a card that many merchants will accept and merchants Cite as: 585 U S (2018) 15 BREYER, J, dissenting want to accept those cards that many customers have and use From this, the majority concludes that “courts must include both sides of the platform—merchants and cardholders—when defining the credit-card market” Ante, at 12; 838 F3d, 1 Missing from the majority’s analysis is any explanation as to why, given the purposes that market definition serves in antitrust law, the fact that a credit-card firm can be to operate a “two-sided transaction platform” means that its merchant-related and shopper-related services
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Justice Breyer
| 2,018 | 2 |
dissenting
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510625/ohio-v-american-express-co/
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“two-sided transaction platform” means that its merchant-related and shopper-related services should be combined into a single market The phrase “two-sided transaction platform” is not one of antitrust art—I can find no case from this Court using those words The majority defines the phrase as covering a business that “offers different products or services to two different groups who both depend on the platform to in termediate between them,” where the business “cannot make a sale to one side of the platform without simultane ously making a sale to the other” side of the platform Ante, at 2 I take from that definition that there are four relevant features of such businesses on the majority’s account: they (1) offer different products or services, (2) to different groups of customers, (3) whom the “platform” connects, (4) in simultaneous transactions See What is it about businesses with those four features that the majority thinks justifies a special market- definition approach for them? It cannot be the first two features—that the company sells different products to different groups of customers Companies that sell multi ple products to multiple types of customers are common place A firm might mine for gold, which it refines and sells both to dentists in the form of fillings and to inves tors in the form of ingots Or, a firm might drill for both oil and natural gas Or a firm might make both ignition 16 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting switches inserted into auto bodies and tires used for cars I have already that, ordinarily, antitrust law will not group the two nonsubstitutable products together for step 1 purposes at 10–11 Neither should it normally matter whether a company sells related, or complementary, products, ie, products which must both be purchased to have any function, such as ignition switches and tires, or cameras and film It is well established that an antitrust court in such cases looks at the product where the attacked restraint has an anti competitive effect ; see Eastman Kodak, 504 US, at The court does not combine the customers for the separate, nonsubstitutable goods and see if “over all” the restraint has a negative effect See ; 2B Areeda & Hovenkamp ¶565a That is because, as I have the complementary relationship between the products is irrelevant to the purposes of market-definition See at 10–11 The majority disputes my characterization of merchant- related and shopper-related services as “complements” See ante, at 14, n 8 The majority relies on an academic article which devotes one sentence to the question, saying that “a two-sided
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Justice Breyer
| 2,018 | 2 |
dissenting
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Ohio v. American Express Co.
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devotes one sentence to the question, saying that “a two-sided market [is] different from markets for complementary products [eg, tires and gas], in which both products are bought by the same buyers, who, in their buying decisions, can therefore be expected to take into account both prices” Filistrucchi, Geradin, Van Damme, & Affeldt, Market Definition in Two-Sided Mar kets: Theory and Practice, 10 J Competition L & Econ 293, 297 (2014) (Filistrucchi) I agree that two-sided platforms—at least as some academics define them, but see infra, at 19–20—may be distinct from some types of complements in the respect the majority mentions (even though the services resemble complements because they must be used together for either to have value) But the distinction the majority mentions has nothing to do with Cite as: 585 U S (2018) 17 BREYER, J, dissenting the relevant question The relevant question is whether merchant-related and shopper-related services are substi- tutes, one for the other, so that customers can respond to a price increase for one service by switching to the other service As I have the two types of services are not substitutes in this way at 11–12 And so the question remains, just as before: What is it about the economic relationship between merchant-related and shopper-related services that would justify the majority’s novel approach to market definition? What about the last two features—that the company connects the two groups of customers to each other, in simultaneous transactions? That, too, is commonplace Consider a farmers’ market It brings local farmers and local shoppers together, and transactions will occur only if a farmer and a shopper simultaneously agree to engage in one Should courts abandon their ordinary step 1 inquiry if several competing farmers’ markets in a city agree that only certain kinds of farmers can participate, or if a farm ers’ market charges a higher fee than its competitors do and prohibits participating farmers from raising their prices to cover it? Why? If farmers’ markets are special, what about travel agents that connect airlines and pas sengers? What about internet retailers, who, in addition to selling their own goods, allow (for a fee) other goods- producers to sell over their networks? Each of those busi nesses seems to meet the majority’s four-prong definition Apparently as its justification for applying a special market-definition rule to “two-sided transaction plat forms,” the majority explains that such platforms “often exhibit” what it calls “indirect network effects” Ante, at 3 By this, the majority means that sales of merchant-related card services and (different) shopper-related card services are interconnected, in that increased
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Justice Breyer
| 2,018 | 2 |
dissenting
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510625/ohio-v-american-express-co/
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and (different) shopper-related card services are interconnected, in that increased merchant-buyers mean increased shopper-buyers (the more stores in the card’s network, the more customers likely to use the card), 18 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting and vice versa See But this, too, is commonplace Consider, again, a farmers’ market The more farmers that participate (within physical and esthetic limits), the more customers the market will likely attract, and vice versa So too with travel agents: the more airlines whose tickets a travel agent sells, the more potential passengers will likely use that travel agent, and the more potential passengers that use the travel agent, the easier it will likely be to convince airlines to sell through the travel agent And so forth Nothing in antitrust law, to my knowledge, suggests that a court, when presented with an agreement that restricts competition in any one of the markets my examples suggest, should abandon traditional market-definition approaches and include in the relevant market services that are complements, not substitutes, of the restrained good See at 10–11 2 To justify special treatment for “two-sided transaction platforms,” the majority relies on the Court’s decision in United States v Grinnell Corp, 384 US 563, 571–572 (1966) In Grinnell, the Court treated as a single market several different “central station services,” including burglar alarm services and fire alarm services It did so even though, for consumers, “burglar alarm ser vices are not interchangeable with fire alarm services” But that is because, for producers, the services were indeed interchangeable: A company that offered one could easily offer the other, because they all involve “a single basic service—the protection of property through use of a central service station” Thus, the “commer cial realit[y]” that the Grinnell Court relied on, ib was that the services being grouped were what economists call “producer substitutes” See 2B Areeda & Hovenkamp ¶561, at 378 And the law is clear that “two products produced interchangeably from the same production facili Cite as: 585 U S (2018) 19 BREYER, J, dissenting ties are presumptively in the same market,” even if they are not “close substitutes for each other on the demand side” That is because a firm that produces one such product can, in response to a price increase in the other, easily shift its production and thereby limit its compet- itor’s power to impose the higher price See ¶561a, at 379 Unlike the various types of central station services at issue in Grinnell Corp, however, the shopper-related and merchant-related services that American Express provides are not “producer substitutes” any more
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Justice Breyer
| 2,018 | 2 |
dissenting
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510625/ohio-v-american-express-co/
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that American Express provides are not “producer substitutes” any more than they are traditional substitutes For producers as for consumers, the services are instead complements Credit card compa nies must sell them together for them to be useful As a result, the credit-card companies cannot respond to, say, merchant-related price increases by shifting production away from shopper-related services to merchant-related services The relevant “commercial realities” in this case are thus completely different from those in Grinnell Corp for this point, but the “commercial realities” considered in that case were that “shoe stores in the outskirts of cities compete effectively with stores in central downtown areas,” and thus are part of the same market at –339 Here, merchant-related services do not, as I have compete with shopper-related services, and so Brown Shoe Co does not support the majority’s position) Thus, our precedent provides no support for the majority’s special approach to defining markets involving “two-sided transaction platforms” 3 What about the academic articles the majority cites? The first thing to note is that the majority defines “two- sided transaction platforms” much more broadly than the 20 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting economists do As the economists who coined the term explain, if a “two-sided market” meant simply that a firm connects two different groups of customers via a platform, then “pretty much any market would be two-sided, since buyers and sellers need to be brought together for markets to exist and gains from trade to be realized” Rochet & Tirole, Two-Sided Markets: A Progress Report, 37 RAND J Econ 645, 646 (2006) The defining feature of a “two- sided market,” ing to these economists, is that “the platform can affect the volume of transactions by charging more to one side of the market and reducing the price paid by the other side by an equal amount” at 664–665; Filistrucchi 299 That requirement appears no where in the majority’s definition By failing to limit its definition to platforms that economists would recognize as “two sided” in the relevant respect, the majority carves out a much broader exception to the ordinary antitrust rules than the academic articles it relies on could possibly support Even as limited to the narrower definition that econo mists use, however, the academic articles the majority cites do not support the majority’s flat rule that firms operating “two-sided transaction platforms” should always be treated as part of a single market for all antitrust purposes Ante, at 13–15 Rather, the academics explain that for market-definition purposes, “[i]n some cases, the fact that a business can be thought
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Justice Breyer
| 2,018 | 2 |
dissenting
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510625/ohio-v-american-express-co/
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some cases, the fact that a business can be thought of as two-sided may be irrelevant,” including because “nothing in the analysis of the practices [at issue] really hinges on the linkages be tween the demands of participating groups” Evans & Schmalensee, Markets With Two-Sided Platforms, 1 Is sues in Competition L & Pol’y 667, 689 (2008) “In other cases, the fact that a business is two-sided will prove important both by identifying the real dimensions of com petition and focusing on sources of constraints” That flexible approach, however, is precisely the one the Cite as: 585 U S (2018) 21 BREYER, J, dissenting District Court followed in this case, by considering the effects of “[t]he two-sided nature of the card industry” throughout its analysis 88 F Supp 3d, at 155 Neither the majority nor the academic articles it cites offer any explanation for why the features of a “two-sided transaction platform” justify always treating it as a single antitrust market, rather than accounting for its economic features in other ways, as the District Court did The article that the majority repeatedly quotes as saying that “ ‘[i]n two-sided transaction markets, only one market should be defined,’ ” ante, at 14–15 (quoting Filistrucchi 302), justifies that conclusion only for purposes of as sessing the effects of a merger In such a case, the article explains, “[e]veryone would probably agree that a payment card company such as American Express is either in the relevant market on both sides or on neither side The analysis of a merger between two payment card platforms should thus consider both sides of the market” at 301 In a merger case this makes sense, but is also mean ingless, because, whether there is one market or two, a reviewing court will consider both sides, because it must examine the effects of the merger in each affected market and submarket See Brown Shoe Co, 370 US, at 325 As for a nonmerger case, the article offers only United States v Grinnell as a justification, see Filistrucchi 303, and as I have already at 16–18, Grinnell does not support this proposition E Put all of those substantial problems with the majority’s reasoning aside, though Even if the majority were right to say that market definition was relevant, and even if the majority were right to further say that the District Court should have defined the market in this case to include shopper-related services as well as merchant-related services, that still would not justify the majority in affirm 22 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting ing the
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Justice Breyer
| 2,018 | 2 |
dissenting
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510625/ohio-v-american-express-co/
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OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting ing the Court of Appeals That is because, as the majority is forced to admit, the plaintiffs made the factual showing that the majority thinks is required See ante, at 17 Recall why it is that the majority says that market definition matters: because if the relevant market includes both merchant-related services and card-related services, then the plaintiffs had the burden to show that as a result of the nondiscrimination provisions, “the price of credit- card transactions”—considering both fees charged to merchants and rewards paid to cardholders—“was higher than the price one would expect to find in a competitive market” Ante, at 16 This mirrors the Court of Appeals’ holding that the Government had to show that the “non discrimination provisions” had “made all [American Ex press] customers on both sides of the platform—ie, both merchants and cardholders—worse off overall” 838 F3d, at 205 The problem with this reasoning, aside from it being wrong, is that the majority admits that the plaintiffs did show this: they “offer[ed] evidence” that American Express “increased the percentage of the purchase price that it charges merchants and that this increase was not entirely spent on cardholder rewards” Ante, 17 (citing 88 F Supp 3d, at 195–197, 215) Indeed, the plaintiffs did not merely “offer evidence” of this—they persuaded the District Court, which made an unchallenged factual find ing that the merchant price increases that resulted from the nondiscrimination provisions “were not wholly offset by additional rewards expenditures or otherwise passed through to cardholders, and resulted in a higher net price” In the face of this problem, the majority retreats to saying that even net price increases do not matter after all, absent a showing of lower output, because if output is increasing, “ ‘rising prices are equally consistent with growing product demand’ ” Ante, at 18 (quoting Brooke Cite as: 585 U S (2018) 23 BREYER, J, dissenting Group Ltd v Brown & Williamson Tobacco Corp, 509 US 209, 237 (1993)) This argument, unlike the price argument, has nothing to do with the credit-card market being a “two-sided transaction platform,” so if this is the basis for the majority’s holding, then nearly all of the opinion is dicta The argument is also wrong It is true as an economic matter that a firm exercises market power by restricting output in order to raise prices But the rele vant restriction of output is as compared with a hypothet ical world in which the restraint was not present and prices were lower The fact that credit-card use in
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Justice Breyer
| 2,018 | 2 |
dissenting
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510625/ohio-v-american-express-co/
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and prices were lower The fact that credit-card use in general has grown over the last decade, as the majority says, see ante, at 17–18, says nothing about whether such use would have grown more or less without the nondiscrimina tion provisions And because the relevant question is a comparison between reality and a hypothetical state of affairs, to require actual proof of reduced output is often to require the impossible—tantamount to saying that the Sherman Act does not apply at all In any event, there are features of the credit-card mar ket that may tend to limit the usual relationship between price and output In particular, merchants generally spread the costs of credit-card acceptance across all their customers (whatever payment method they may use), while the benefits of card use go only to the cardholders See, eg, 88 F Supp 3d, at 216; Brief for John M Connor et al as Amici Curiae 34–35 Thus, higher credit-card merchant fees may have only a limited effect on credit- card transaction volume, even as they disrupt the market place by extracting anticompetitive profits IV A For the reasons I have stated, the Second Circuit was wrong to lump together the two different services sold, at step 1 But I recognize that the Court of Appeals has not 24 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting yet considered whether the relationship between the two services might make a difference at steps 2 and 3 That is to say, American Express might wish to argue that the nondiscrimination provisions, while anticompetitive in respect to merchant-related services, nonetheless have an adequate offsetting procompetitive benefit in respect to its shopper-related services I believe that American Express should have an opportunity to ask the Court of Appeals to consider that matter American Express might face an uphill battle A Sher man Act defendant can rarely, if ever, show that a pro- competitive benefit in the market for one product offsets an anticompetitive harm in the market for another In United States v Topco Associates, Inc, 405 US 596, (1972), this Court wrote: “If a decision is to be made to sacrifice competition in one portion of the economy for greater competition in another portion, this is a decision that must be made by Congress and not by private forces or by the courts Private forces are too keenly aware of their own interests in making such decisions and courts are ill-equipped and ill-situated for such decisionmaking” American Express, pointing to vertical price-fixing cases like our decision in Leegin, argues that comparing competition-related pros and cons
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Justice Breyer
| 2,018 | 2 |
dissenting
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510625/ohio-v-american-express-co/
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decision in Leegin, argues that comparing competition-related pros and cons is more common than I have just suggested See 551 US, at 889–892 But Leegin held only that vertical price fixing is subject to the “rule of reason” instead of being per se unlawful; the “rule of reason” still applies to vertical agreements just as it applies to horizontal agreements See at 898–899 Moreover, the procompetitive justifications for vertical price-fixing agreements are not apparently applicable to the distinct types of restraints at issue in this case A vertically imposed price-fixing agreement typically in volves a manufacturer controlling the terms of sale for its Cite as: 585 U S (2018) 25 BREYER, J, dissenting own product A television-set manufacturer, for example, will insist that its dealers not cut prices for the manufac turer’s own televisions below a particular level Why might a manufacturer want its dealers to refrain from price competition in the manufacturer’s own products? Perhaps because, for example, the manufacturer wants to encourage the dealers to develop the market for the manu facturer’s brand, thereby increasing interbrand competi tion for the same ultimate product, namely a television set This type of reasoning does not appear to apply to American Express’ nondiscrimination provisions, which seek to control the terms on which merchants accept other brands’ cards, not merely American Express’ own Regardless, I would not now hold that an agreement such as the one before us can never be justified by pro- competitive benefits of some kind But the Court of Ap peals would properly consider procompetitive justifications not at step 1, but at steps 2 and 3 of the “rule of reason” inquiry American Express would need to show just how this particular anticompetitive merchant-related agree ment has procompetitive benefits in the shopper-related market In doing so, American Express would need to overcome the District Court’s factual findings that the agreement had no such effects See 88 F Supp 3d, at 224–238 B The majority charts a different path Notwithstanding its purported acceptance of the three-step, burden-shifting framework I have described, ante, –10, the majority addresses American Express’ procompetitive justifications now, at step 1 of the analysis, see ante, at 18–20 And in doing so, the majority inexplicably ignores the District Court’s factual findings on the subject The majority reasons that the challenged nondiscrimi nation provisions “stem negative externalities in the credit 26 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting card market and promote interbrand competition” Ante, at 19 The “negative externality” the majority has in mind is this: If one merchant persuades a shopper not to use
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Justice Breyer
| 2,018 | 2 |
dissenting
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510625/ohio-v-american-express-co/
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this: If one merchant persuades a shopper not to use his American Express card at that merchant’s store, that shopper becomes less likely to use his American Express card at other merchants’ stores The majority wor ries that this “endangers the viability of the entire [Ameri can Express] network,” ib but if so that is simply a consequence of American Express’ merchant fees being higher than a competitive market will support “The antitrust laws were enacted for ‘the protection of competi- tion, not competitors’ ” Atlantic Richfield Co v USA Petroleum Co, 495 US 328, If American Express’ merchant fees are so high that merchants suc cessfully induce their customers to use other cards, Ameri can Express can remedy that problem by lowering those fees or by spending more on cardholder rewards so that cardholders decline such requests What it may not do is demand contractual protection from price competition In any event, the majority ignores the fact that the District Court, in addition to saying what I have just also rejected this argument on independent factual grounds It that American Express “presented no expert testimony, financial analysis, or other direct evidence establishing that without its [nondiscrimination provisions] it will, in fact, be unable to adapt its business to a more competitive market” 88 F Supp 3d, at 231 It further that the testimony that was provided on the topic “was notably inconsistent,” with some of Ameri can Express’ witnesses saying only that invalidation of the provisions “would require American Express to adapt its current business model” After an extensive discus sion of the record, the District Court found that “American Express possesses the flexibility and expertise necessary to adapt its business model to suit a market in which it is required to compete on both the cardholder and merchant Cite as: 585 U S (2018) 27 BREYER, J, dissenting sides of the [credit-card] platform” at 231–232 The majority evidently rejects these factual findings, even though no one has challenged them as clearly erroneous Similarly, the majority refers to the nondiscrimination provisions as preventing “free riding” on American Ex press’ “investments in rewards” for cardholders Ante, at 19–20; see also ante, (describing steering in terms suggestive of free riding) But as the District Court ex plained, “[p]lainly investments tied to card use (such as Membership Rewards points, purchase protection, and the like) are not subject to free-riding, since the network does not incur any cost if the cardholder is successfully steered away from using his or her American Express card” 88 F Supp 3d, at 237 This, I should think,
|
Justice Breyer
| 2,018 | 2 |
dissenting
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Ohio v. American Express Co.
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https://www.courtlistener.com/opinion/4510625/ohio-v-american-express-co/
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88 F Supp 3d, at 237 This, I should think, is an unassailable conclusion: American Express pays rewards to cardholders only for transactions in which cardholders use their American Express cards, so if a steering effort succeeds, no rewards are paid As for concerns about free riding on American Express’ fixed expenses, including its investments in its brand, the District Court acknowledged that free-riding was in theory possible, but that American Express “ma[de] no effort to identify the fixed expenses to which its experts referred or to explain how they are subject to free riding” ; see also (American Express’ own data showed “that the network’s ability to confer a credentialing benefit trails that of its competitors, casting doubt on whether there is in fact any particular benefit associated with accepting [American Express] that is subject to free riding”) The majority does not even acknowledge, much less reject, these factual findings, despite coming to the contrary conclusion Finally, the majority reasons that the nondiscrimination provisions “do not prevent Visa, MasterCard, or Discover from competing against [American Express] by offering lower merchant fees or promoting their broader merchant acceptance” Ante, at 20 But again, the District Court’s 28 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting factual findings were to the contrary As I laid out the District Court found that the nondiscrimination provi sions in fact did prevent Discover from pursuing a low merchant-fee business model, by “den[ying] merchants the ability to express a preference for Discover or to employ any other tool by which they might steer share to Discov er’s lower-priced network” 88 F Supp 3d, ; see The majority’s statements that the nondis crimination provisions are procompetitive are directly contradicted by this and other factual findings * * * For the reasons I have the majority’s decision in this case is contrary to basic principles of antitrust law, and it ignores and contradicts the District Court’s detailed factual findings, which were based on an extensive trial record I respectfully dissent
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Justice Brennan
| 1,972 | 13 |
dissenting
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Kirby v. Illinois
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https://www.courtlistener.com/opinion/108554/kirby-v-illinois/
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After petitioner and Ralph Bean were arrested, police officers brought Willie Shard, the robbery victim, to a room in a police station where petitioner and Bean were seated at a table with two other police officers. Shard testified at trial that the officers who brought him to the *692 room asked him if petitioner and Bean were the robbers and that he indicated they were. The prosecutor asked him, "And you positively identified them at the police station, is that correct?" Shard answered, "Yes." Consequently, the question in this case is whether, under it was constitutional error to admit Shard's testimony that he identified petitioner at the pretrial station-house showup when that showup was conducted by the police without advising petitioner that he might have counsel present. held, in the context of a post-indictment lineup, that "[o]nly a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup." I would apply and the principles of its companion case, United and reverse.[1] In after concluding that the lineup conducted in that case did not violate the accused's right against self-incrimination,[2] the addressed *693 the argument "that the assistance of counsel at the lineup was indispensable to protect 's most basic right as a criminal defendanthis right to a fair trial at which the witnesses against him might be meaningfully cross-examined," The began by emphasizing that the Sixth Amendment guarantee "encompasses counsel's assistance whenever necessary to assure a meaningful `defence.' " After reviewing ; ; and the 388 U.S., focused upon two cases that involved the right against self-incrimination: "In we drew upon the rationale of Hamilton and Massiah in holding that the right to counsel was guaranteed at the point where the accused, prior to arraignment, was subjected to secret interrogation despite repeated requests to see his lawyer. We again noted the necessity of counsel's presence if the accused was to have a fair opportunity to present a defense at the trial itself" United 388 U. S., -226.[3] *694 "[I]n the rules established for custodial interrogation included the right to the presence of counsel. The result was rested on our finding that this and the other rules were necessary to safeguard the privilege against self-incrimination from being jeopardized by such interrogation." The then pointed out that "nothing decided or said in the opinions in [Escobedo and Miranda] links the right to counsel only to protection of Fifth Amendment rights." To the contrary, the said, those decisions
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Justice Brennan
| 1,972 | 13 |
dissenting
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Kirby v. Illinois
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https://www.courtlistener.com/opinion/108554/kirby-v-illinois/
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Fifth Amendment rights." To the contrary, the said, those decisions simply reflected the constitutional "principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial. The security of that right is as much the aim of the right to counsel as it is of the other guarantees of the Sixth Amendment." -227. This analysis led to the 's formulation of the controlling principle for pretrial confrontations: "In sum, the principle of and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice." *695 It was that constitutional principle that the applied in to pretrial confrontations for identification purposes. The first met the Government's contention that a confrontation for identification is "a mere preparatory step in the gathering of the prosecution's evidence," much like the scientific examination of fingerprints and blood samples. The responded that in the latter instances "the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts." The accused thus has no right to have counsel present at such examinations: "they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial." -228. In contrast, the said, "the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial." Most importantly, "the accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification." The 's analysis of pretrial confrontations for identification purposes produced the following conclusion: "Insofar as the accused's conviction may rest on a courtroom identification in fact the fruit
|
Justice Brennan
| 1,972 | 13 |
dissenting
|
Kirby v. Illinois
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https://www.courtlistener.com/opinion/108554/kirby-v-illinois/
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may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination *696 which is an essential safeguard to his right to confront the witnesses against him. And even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eye-witness identification at the lineup itself. The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness`that's the man.' " The then applied that conclusion to the specific facts of the case. "Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for the post-indictment lineup was a critical stage of the prosecution at which he was `as much entitled to such aid [of counsel] as at the trial itself.' " While it should go without saying, it appears necessary, in view of the plurality opinion today, to re-emphasize that did not require the presence of counsel at pretrial confrontations for identification purposes simply on the basis of an abstract consideration of the words "criminal prosecutions" in the Sixth Amendment. Counsel is required at those confrontations because "the *697 dangers inherent in eyewitness identification and the suggestibility inherent in the context of the pretrial identification,"[4] mean that protection must be afforded to the "most basic right [of] a criminal defendant his right to a fair trial at which the witnesses against him might be meaningfully cross-examined," Indeed, the expressly stated that "[l]egislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as `critical.' " ; see n. 30; 388 U. S., Hence, "the initiation of adversary judicial criminal
|
Justice Brennan
| 1,972 | 13 |
dissenting
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Kirby v. Illinois
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https://www.courtlistener.com/opinion/108554/kirby-v-illinois/
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388 U. S., Hence, "the initiation of adversary judicial criminal proceedings," ante, is completely irrelevant to whether counsel is necessary at a pretrial confrontation for identification in order to safeguard the accused's constitutional rights to confrontation and the effective assistance of counsel at his trial. In view of it is plain, and the plurality today does not attempt to dispute it, that there inhere in a confrontation *698 for identification conducted after arrest[5] the identical hazards to a fair trial that inhere in such a confrontation conducted "after the onset of formal prosecutorial proceedings." The plurality apparently considers an arrest, which for present purposes we must assume to be based upon probable cause, to be nothing more than part of "a routine police investigation," ib and thus not "the starting point of our whole system of adversary criminal justice,"[6] An arrest, according to the plurality, does not face the accused "with the prosecutorial forces of organized society," nor immerse him "in the intricacies of substantive and procedural criminal law." Those consequences ensue, says the plurality, only with "[t]he initiation of judicial criminal proceedings," "[f]or it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified." [7] If these propositions do not amount to *699 "mere formalism," ib it is difficult to know how to characterize them.[8] An arrest evidences the belief of the police that the perpetrator of a crime has been caught. A post-arrest confrontation for identification is not "a mere preparatory step in the gathering of the prosecution's evidence." A primary, and frequently sole, purpose of the confrontation for identification at that stage is to accumulate proof to buttress the conclusion of the police that they have the offender in hand. The plurality offers no reason, and I can think of none, for concluding that a post-arrest confrontation for identification, unlike a post-charge confrontation, is not among those "critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality." The highly suggestive form of confrontation employed in this case underscores the point. This showup was particularly fraught with the peril of mistaken *700 identification. In the setting of a police station squad room where all present except petitioner and Bean were police officers, the danger was quite real that Shard's understandable resentment might lead him too readily to agree with the police that the pair under arrest, and the only persons exhibited to him, were indeed
|
Justice Brennan
| 1,972 | 13 |
dissenting
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Kirby v. Illinois
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https://www.courtlistener.com/opinion/108554/kirby-v-illinois/
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arrest, and the only persons exhibited to him, were indeed the robbers. "It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police." The State had no case without Shard's identification testimony,[9] and safeguards against that consequence were therefore of critical importance. Shard's testimony itself demonstrates the necessity for such safeguards. On direct examination, Shard identified petitioner and Bean not as the alleged robbers on trial in the courtroom, but as the pair he saw at the police station. His testimony thus lends strong support to the observation, quoted by the in that "[i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial." Williams & Hammelmann, Identification Parades, Part I, [1963] Crim. L. Rev. 479, 482. The plurality today "decline[s] to depart from [the] rationale" of and Ante, The plurality discovers that "rationale" not by consulting those decisions themselves, which would seem to be the appropriate course, but by reading one sentence in where no right-to-counsel claim was either asserted or considered. The "rationale" the plurality discovers is, apparently, *701 that a post-indictment confrontation for identification is part of the prosecution. The plurality might have discovered a different "rationale" by reading one sentence in Foster v. a case decided after Simmons, where the explained that in and "this held that because of the possibility of unfairness to the accused in the way a lineup is conducted, a lineup is a `critical stage' in the prosecution, at which the accused must be given the opportunity to be represented by counsel." In Foster, moreover, although the mentioned that the lineups took place after the accused's arrest, it did not say whether they were also after the information was filed against him.[10] Instead, the simply pointed out that under and were "applicable only to lineups conducted after those cases were decided." 394 U.S., at Similarly, in another case involving a pre- lineup, no member of the saw any significance in whether the accused had been formally charged with a crime before the lineup was held.[11] *702 The plurality might also have discovered a different "rationale" for and had it examined decided the same day. In Stovall, the confrontation for identification took place one day after the accused's arrest. Although the
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Justice Brennan
| 1,972 | 13 |
dissenting
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Kirby v. Illinois
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https://www.courtlistener.com/opinion/108554/kirby-v-illinois/
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took place one day after the accused's arrest. Although the accused was first brought to an arraignment, it "was postponed until [he] could retain counsel." Hence, in the plurality's terms today, the confrontation was held "before the commencement of any prosecution." Ante,[12] Yet in that circumstance the in Stovall *703 stated that the accused raised "the same alleged constitutional errors in the admission of allegedly tainted identification evidence that were before us" in and The therefore found that the case "provide[d] a vehicle for deciding the extent to which the rules announced in and requiring the exclusion of identification evidence which is tainted by exhibiting the accused to identifying witnesses before trial in the absence of his counselare to be applied retroactively." Indeed, the 's explicit holding was "that and affect only those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel after this date. The rulings of and are therefore inapplicable in the present case." Hence, the accused in Stovall did not receive the benefit of the new exclusionary rules because they were not applied retroactively; he was not denied their benefit because his confrontation took place before he had "been formally charged with a criminal offense." Ante, at 691. Moreover, in the course of its retroactivity 388 U.S., -301, the repeated the phrase "pretrial confrontations for identification" or its equivalent no less than 10 times. Not once did the so much as hint that and applied only to confrontations after the accused "had been indicted or otherwise formally charged with [a] criminal offense." Ante, In fact, at one point the summarized as holding "that the confrontation [for identification] is a `critical stage,' and that counsel *704 is required at all confrontations." and of course, happened to involve post-indictment confrontations. Yet even a cursory perusal of the opinions in those cases reveals that nothing at all turned upon that particular circumstance.[13] In short, it is fair to conclude that rather than "declin[ing] to depart from [the] rationale" of and ante, the plurality today, albeit purporting to be engaged in "principled constitutional adjudication," refuses even to recognize that "rationale." For my part, I do not agree that we "extend" and by holding that the principles of those cases apply to confrontations for identification conducted after arrest.[14] Because Shard testified at trial *705 about his identification of petitioner at the police station showup, the exclusionary rule of -274, requires reversal. MR.
|
Justice White
| 1,973 | 6 |
majority
|
Swenson v. Stidham
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https://www.courtlistener.com/opinion/108642/swenson-v-stidham/
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This case has a long and tortured history and is not yet concluded. At this juncture the question is whether, absent further state court proceedings to determine the voluntariness of his confession, respondent's 1955 conviction for murder is vulnerable to attack under the Fourteenth Amendment as construed and applied in In July 1955, respondent was convicted of first-degree murder of a fellow inmate during a riot. He was sentenced to life imprisonment. He was represented by experienced counsel who challenged his confession when it was offered at trial. A full evidentiary hearing outside the presence of the jury was held. 's testimony as to the relevant circumstances surrounding his confession was in sharp conflict with that of the officers. His claim was that he had been subjected to gross physical abuse; the officers denied the claim. At the conclusion of the hearing, the trial judge admitted the confession with the following ruling: "THE COURT: [Exhibit] 16 and 16-1, it is the Court's opinion that the matters concerning the statement should be offered in the presence of the Jury, subject of course to any attacks as to its credibility by the Defendant. The Defendant has of course the right to proceed to challenge the voluntariness of the statement and confession, even before the Jury, but it is the Court's opinion that upon the evidence that has been offered before the Court and outside *226 of the hearing of the Jury, the statement is and should be admissible in evidence, subject to further examinations of the witnesses which might be conducted, so we may proceed with Sergeant Little, as to his identification before the Jury of the statement in question, Exhibit 16 and 16-1. "MR. HENNELLY: In other words, the Court is overruling my Motion, and request of the Court to hold as a matter of law, that those statements were involuntary, is that right? "THE COURT: That is right. Mr. Sheriff will you bring the Jury back in?" 's conviction was affirmed on appeal in A motion to vacate was denied and the denial affirmed, On a second motion to vacate, however, the Missouri Supreme Court ordered an evidentiary hearing in accordance with its newly revised post-conviction procedures. Among the issues to be heard and decided was whether 's conviction was infirm under and the Due Process Clause of the Fourteenth Amendment. In compliance with this order, an evidentiary hearing was held on December 5, 1968, before Judge Godfrey in the Circuit Court of the City of St. Louis. The court heard oral testimony from both and witnesses offered by the
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Justice White
| 1,973 | 6 |
majority
|
Swenson v. Stidham
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https://www.courtlistener.com/opinion/108642/swenson-v-stidham/
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heard oral testimony from both and witnesses offered by the ; it also had before it the transcript of the prior proceedings as well as certain stipulations of fact by the parties. In April 1969, the court issued its opinion, with findings of fact and conclusions of law, denying the relief requested. With respect to the confession issue, the court first concluded that the judge himself at 's trial had found the confession voluntary *227 and had thus complied with the rule of As to voluntariness vel non, the court said: "As to subparagraph b concerning the averment that `the overwhelming evidence was that the statement was involuntary because of coercion exerted on movant,' this contention was raised and profusely litigated in vs. and the Court finds it no longer open to question here. vs. Crawford vs. "It should be noted that the evidence concerning the issue of voluntariness was greatly conflicting and was to be resolved by the trial court in the first instance and the jury in the second having regard to the credibility of the witnesses. This issue should now be considered closed, and this Court finds it to be so." This judgment was affirmed in the Missouri Supreme Court. Agreeing first that the judge at 's trial had with sufficient clarity found the confession voluntary and admissible in evidence, the court then held that in any event had been given a new evidentiary hearing and his confession again determined to be voluntary by the circuit court. In its view, the circuit court had "found, as had the previous court, that the oral and written confessions were voluntary" Based upon its own extensive analysis of the record, the Missouri Supreme Court also concluded that the finding of voluntariness was "overwhelmingly supported and procedurally and factually the cause meets all the requirements of the federal cases and there has been no invasion of due process." then resorted to federal habeas corpus, presenting several issues including the confession matter. *228 The United s District Court for the Western District of Missouri, after having examined the full record of the state court proceedings, denied the petition without a hearing but with an opinion holding that there had been no violation of because the state trial judge had satisfactorily found the confession voluntary prior to submitting it to the jury. The Court of Appeals reversed by a divided vote. Its understanding of Missouri law at the time of 's trial was that the trial judge was not required to make a finding on voluntariness himself, but was permitted to submit the
|
Justice White
| 1,973 | 6 |
majority
|
Swenson v. Stidham
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https://www.courtlistener.com/opinion/108642/swenson-v-stidham/
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finding on voluntariness himself, but was permitted to submit the issue to the jury in the first instance. As the Court of Appeals saw it, this is precisely what the trial court did: the finding that the confession was not involuntary as a matter of law was not an independent assessment of voluntariness but merely a statement that the issue was one for the jury. Because in its view there had never been a reliable judicial determination of the facts and of the ultimate issue of voluntariness, either at trial or in later proceedings, the Court of Appeals reversed the judgment and remanded the case to the District Court, it being contemplated that the would be allowed "reasonable time to make an error-free determination on the voluntariness of the confession at issue" We granted certiorari, We are first asked to hold that the Court of Appeals erred in concluding that 's trial judge failed to comply with the requirement of the Fourteenth Amendment as construed in that there must be a judicial finding of voluntariness before a challenged confession is submitted to the jury. Petitioner's position is not without force, and begins with the proposition that the Court of Appeals was too much influenced by *229 what the trial judge might have done under the Missouri law prevailing at the time and too little by what he actually did. Even if the controlling rule permitted submission of a challenged confession to the jury without the judge's own determination of voluntariness, that rule, the argument goes, did not prevent him from resolving the disputed issues of fact prior to admitting the confession into evidence. Obviously, it is said, 's trial judge took the latter course, for (1) he held a full evidentiary hearing outside the presence of the jury, a wholly unnecessary and time-wasting procedure if he was merely to determine if there was a disputed issue as to voluntariness that should be submitted to the jury and (2) having heard the evidence, he denied the motion to suppress and found the confession not involuntary as a matter of law, a conclusion necessarily indicating that the judge resolved the disputed issues against for had he believed him rather than the police, it is inconceivable that the confession would have been submitted to the jury. Finally, it is urged that the Missouri courts and the Federal District Court construed the trial judge's ruling as equivalent to an affirmative finding that the confession was voluntary and that the Court of Appeals should have accepted this interpretation of the proceedings in the lower courts.
|
Justice White
| 1,973 | 6 |
majority
|
Swenson v. Stidham
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https://www.courtlistener.com/opinion/108642/swenson-v-stidham/
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accepted this interpretation of the proceedings in the lower courts. The issue, then, is not free from doubt, but it is evident that we need not decide it in this case, for the Court of Appeals erred in another respect that requires reversal of its judgment. Even if the trial procedure was flawed with respect to the challenged confession, does not entitle to a new trial if the subsequently provided him an error-free judicial determination of the voluntariness of his confessionerror-free in that the determination was procedurally adequate and substantively acceptable under the Due Process Clause. Jackson v. *230 -396. Here, the Missouri courts, in connection with 's second motion to vacate his sentence, unquestionably furnished a procedurally adequate evidentiary hearing, and the outcome was adverse to But it is said that the St. Louis Circuit Court considered itself bound by prior proceedings and never independently determined that 's confession was voluntarily given. Reliance is placed on Judge Godfrey's statement that the evidence was conflicting, that the issue was for the trial court and jury and that "[the] issue should now be considered closed, and this Court finds it to be so." This contention is in the teeth of the Missouri Supreme Court's prior order reopening the entire matter and directing the trial judge to hold a full evidentiary hearing and then "to decide all issues of fact and questions of law" The Missouri Supreme Court later thought its mandate had been complied with and expressly read the Circuit Court as having "found, as had the previous court, that the oral and written confessions were voluntary" 449 S.W.2d, What is more, the Supreme Court carefully reviewed the record, noting that "the testimony in contradiction of 's uncorroborated claims was all but overwhelming," and that the patrol, police and prison officers"all these witnesses, all produced by the state, categorically or implicitly refuted all of 's claims of mistreatment, either physical or mental." The court's conclusion was that the finding of voluntariness was "overwhelmingly supported" and that there had been no invasion of due process. We are not inclined to disagree with the Missouri Supreme Court's interpretation of the Circuit Court's opinion and judgment. We also hold that as between the two courts the error, if any, was sufficiently remedied. *231 This, of course, does not end the matter. A state prisoner is free to resort to federal habeas corpus with the claim that, contrary to a state court's judgment, his confession was involuntary and inadmissible as a matter of law. The Court of Appeals did not reach this issue. We are
|
Justice White
| 1,986 | 6 |
dissenting
|
Bowen v. American Hospital Assn.
|
https://www.courtlistener.com/opinion/111685/bowen-v-american-hospital-assn/
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Section 504 of the Rehabilitation Act of 1973 forbids discrimination solely on the basis of handicap in programs or activities receiving federal financial assistance. The issue before us is whether the Secretary of Health and Human Services has any authority under the Act to regulate medical treatment decisions concerning handicapped newborn infants. Relying on its prior decision in United the Court of Appeals held that the Secretary was without power in this respect and affirmed a decision of the District Court that 504 does not extend so far and that the Secretary may not regulate such decisions in any manner. Although it is my view that we granted certiorari to address this issue, the plurality avoids it by first erroneously reading the decision below as enjoining only the enforcement of specific regulations and by then affirming on the basis that the promulgation of the regulations did not satisfy established principles of administrative law, a matter that the Court of Appeals had no occasion to, and did not, discuss. With all due respect, I dissent. I The plurality's initial and fundamental error is its statement that the only question presented here is the specific question whether the four mandatory provisions of the Final Rules issued by the Secretary are authorized by 504. This conclusion misconstrues the opinion and judgment of the Court of Appeals. The plurality concedes that the District Court's judgment on its face did not stop with enjoining the *649 enforcement of the final regulations. Ante, at 625-626, n. 11. In fact, the District Court permanently enjoined the Secretary from implementing the final regulations and also from "continuing or undertaking any other actions to investigate or regulate treatment decisions involving impaired newborn infants taken under authority of Section 504, including pending investigation and other enforcement actions." App. to Pet. for Cert. 51a-52a. This broad injunction ousted the Secretary from the field entirely and granted the precise relief sought by the complaint, which was filed after University Hospital and which sought to take full advantage of that decision.[1] The Court of Appeals affirmed and in no way modified the injunction that the District Court had entered. In doing so, the Court of Appeals relied on its previous determination in University Hospital that the Secretary had no statutory authority to regulate medical treatment decisions regarding newborn infants. See App. to Pet. for Cert. 2a-3a.[2] *650 It is true that the regulations themselves were invalidated and their enforcement enjoined. This result, however, was directly compelled by the University Hospital conclusion that the Secretary was without power to issue any regulations whatsoever that
|
Justice White
| 1,986 | 6 |
dissenting
|
Bowen v. American Hospital Assn.
|
https://www.courtlistener.com/opinion/111685/bowen-v-american-hospital-assn/
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Secretary was without power to issue any regulations whatsoever that dealt with infants' medical care, and it did not comprise the whole relief awarded by the District Court and affirmed by the Court of Appeals. I thus see no justification for the plurality's distortion of the Court of Appeals' affirmance of the District Court's all-inclusive injunction, which, like University Hospital, now represents the law in the Second Circuit.[3] We should resolve the threshold statutory question that this case and University Hospital clearly pose namely, whether the Secretary has any authority at all under the Act to regulate medical care decisions with respect to the handicapped newborn.[4] II Section 504 of the Act, which was construed in University Hospital, provides: "No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, *651 shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S. C. 794. After determining that 706(7), which defines handicapped persons, is not limited to adults and includes the newborn, the Court of Appeals in University Hospital construed the "otherwise qualified" language of 504 to limit the reach of the section to situations in which the handicap is "unrelated to, and thus improper to consideration of, the services in question."[5] This, concluded the Court of Appeals, would exclude most handicapped newborns because their handicaps are not normally irrelevant to the need for medical services. Furthermore, the Court of Appeals thought that the "otherwise qualified" limitation should not be applied in the "comparatively fluid context of medical treatment decisions" because "[w]here the handicapping condition is related to the condition(s) to be treated, it will *652 rarely, if ever, be possible to say with certainty that a particular decision was `discriminatory.' " Having identified these perceived incongruities between the language of 504 and the potential regulation of medical decisions regarding handicapped newborns, the Court of Appeals concluded that "[b]efore ruling that congress intended to spawn this type of litigation under section 504, we would want more proof than is apparent from the face of the statute." Thus, the Court of Appeals turned to the legislative history, where it again found nothing to persuade it that Congress intended 504 to apply to medical treatment of handicapped infants and hence to enter a field so traditionally occupied by the States. Neither did it consider the current administrative interpretation of 504 to be a longstanding agency construction calling for judicial deference. In the Court
|
Justice White
| 1,986 | 6 |
dissenting
|
Bowen v. American Hospital Assn.
|
https://www.courtlistener.com/opinion/111685/bowen-v-american-hospital-assn/
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longstanding agency construction calling for judicial deference. In the Court of Appeals' view, therefore, the section was inapplicable to medical treatment decisions regarding the newborn absent some further indication of congressional intent. I disagree with this conclusion, which the Court of Appeals adhered to in the case before us now. Looking first at the language of the statute, I agree with the Court of Appeals' preliminary conclusion that handicapped newborns are handicapped individuals covered by the Act. There is no reason for importing an age limitation into the statutory definition, and this Court has previously stated that " 504 protects handicapped persons of all ages from discrimination in a variety of programs and activities receiving federal financial assistance."[6] This leaves the critical question whether a handicapped *653 infant can ever be "otherwise qualified" for medical treatment and hence possibly subjected to unlawful discrimination when he or she is denied such treatment.[7] *654 It may well be that our prior consideration of this language has implied that the Court of Appeals' construction is correct. In Southeastern Community we held that "[a]n otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap." This formulation may be read as implying that where a handicapped person meets all of the requirements normally necessary to receive a program's benefits regardless of his or her handicap, he or she is otherwise qualified because that handicap does not interfere with and is thus irrelevant to his or her qualification for the program. Thus, the Court of Appeals' view that refusing treatment that is called for only because of the handicapping condition cannot constitute discrimination on the basis of handicap since there will be no similarly situated nonhandicapped newborn, i. e., one who needs the same treatment draws support from our holding in Davis since it turns on the same underlying perception that discrimination occurs only when the handicapping condition is irrelevant to the qualification for the program. *655 Even under the Court of Appeals' interpretation of "otherwise qualified," however, it does not follow that 504 may never apply to medical treatment decisions for the newborn. An esophageal obstruction, for example, would not be part and parcel of the handicap of a baby suffering from Down's syndrome, and the infant would benefit from and is thus otherwise qualified for having the obstruction removed in spite of the handicap. In this case, the treatment is completely unrelated to the baby's handicapping condition. If an otherwise normal child would be given the identical treatment, so should the handicapped
|
Justice White
| 1,986 | 6 |
dissenting
|
Bowen v. American Hospital Assn.
|
https://www.courtlistener.com/opinion/111685/bowen-v-american-hospital-assn/
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would be given the identical treatment, so should the handicapped child if discrimination on the basis of the handicap is to be avoided.[8] It would not be difficult to multiply examples like this. And even if it is true that in the great majority of cases the handicap itself will constitute the need for treatment, I doubt that this consideration or any other mentioned by the Court of Appeals justifies the wholesale conclusion that 504 never applies to newborn infants with handicaps. That some or most failures to treat may not fall within 504, that discerning which failures to treat are discriminatory may be difficult, and that applying 504 in this area may intrude into the traditional functions of the State do not support the categorical *656 conclusion that the section may never be applied to medical decisions about handicapped infants. And surely the absence in the legislative history of any consideration of handicapped newborns does not itself narrow the reach of the statutory language. See Jefferson County Pharmaceutical Furthermore, the broad remedial purpose of the section would be undermined by excluding handicapped infants from its coverage; and if, as the plurality indicates, ante, at 642-6, the Secretary has substantial leeway to explore areas in which discrimination against the handicapped poses serious problems and to devise regulations to prohibit the discrimination, it is appropriate to take note of the Secretary's present view that 504 properly extends to the subject matter at issue here. Thus, I believe that the Court of Appeals in University Hospital incorrectly concluded that 504 may never apply to medical treatment decisions concerning handicapped newborn infants. Where a decision regarding medical treatment for a handicapped newborn properly falls within the statutory provision, it should be subject to the constraints set forth in 504. Consequently, I would reverse the judgment below. III Having determined that the stated basis for the Court of Appeals' holding in University Hospital was incorrect and that the decision below cannot be supported by University Hospital's blanket prohibition, I would remand the case to the Court of Appeals. Respondents have, as the plurality's opinion itself demonstrates, raised significant issues aside from the threshold statutory issue presented here. There are, for example, substantial questions regarding the scope of the Secretary's statutory authority in this area and whether these particular regulations are consistent with the statute. I would decline to reach and decide these questions for the first time in this Court without the benefit of the *657 lower courts' deliberations.[9] The plurality, however, has chosen to reach out and address one of those subsidiary issues.
|
Justice White
| 1,986 | 6 |
dissenting
|
Bowen v. American Hospital Assn.
|
https://www.courtlistener.com/opinion/111685/bowen-v-american-hospital-assn/
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to reach out and address one of those subsidiary issues. Because the plurality has resolved that issue in a manner that I find indefensible on its own terms, I too address it. The plurality concludes that the four mandatory provisions of the final regulations are invalid because there is no " `rational connection between the facts found and the choice made.' " Motor Vehicle Mfrs. Assn., The basis for this conclusion is the plurality's perception that two and only two wholly discrete categories of decisions are the object of the final regulations: (1) decisions made by hospitals to treat or not treat where parental consent has been given and (2) decisions made by hospitals to refer or not to refer a case to the state child protective services agency where parental consent has been withheld.[10]*658 Since the Secretary has not specifically pointed to discriminatory actions that provably resulted from either of these two specific types of decisions, the plurality finds that the Secretary's conclusion that discrimination is occurring is unsupported factually. The plurality's characterization of the Secretary's rationale, however, oversimplifies both the complexity of the situations to which the regulations are addressed and the reasoning of the Secretary. First, the Secretary's proof that treatment is in fact being withheld from handicapped infants is unquestioned by the plurality. It is therefore obvious that whoever is making them, decisions to withhold treatment from such infants are in fact being made. This basic understanding is critical to the Secretary's further reasoning, and the discussion accompanying the proposed regulations clearly indicates that this was the Secretary's starting point. See -30848 Proceeding with this factual understanding, the next question is whether such withholding of treatment constitutes prohibited discrimination under 504 in some or all situations. It is at this point that the plurality errs. In the plurality's view, only two narrow paradigmatic types of decisions were contemplated by the Secretary as potentially constituting discrimination in violation of the statute. See ante, at 628-629. The plurality does not explain, however, precisely what in the Secretary's discussion gives rise to this distillation, and my reading of the explanation accompanying the regulations does not leave me with so limited a view of the Secretary's concerns. The studies cited by the Secretary in support of the regulations and other literature concerning medical treatment in this area generally portray a decisionmaking process in which the parents and the doctors and often other concerned persons as well are involved although the parental decision to consent or not is obviously the critical one.[11] Thus, the parental *659 consent decision does not
|
Justice White
| 1,986 | 6 |
dissenting
|
Bowen v. American Hospital Assn.
|
https://www.courtlistener.com/opinion/111685/bowen-v-american-hospital-assn/
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critical one.[11] Thus, the parental *659 consent decision does not occur in a vacuum. In fact, the doctors (directly) and the hospital (indirectly) in most cases participate in the formulation of the final parental decision and in many cases substantially influence that decision.[12] Consequently, discrimination against a handicapped infant may assume guises other than the outright refusal to treat once parental consent has been given. Discrimination may occur when a doctor encourages or fails to discourage a parental decision to refuse consent to treatment for a handicapped child when the doctor would discourage or actually oppose a parental decision to refuse consent to the same treatment for a nonhandicapped child. Or discrimination may occur when a doctor makes a discriminatory treatment recommendation that the parents simply follow. Alternatively, discrimination may result from a hospital's explicit laissez-faire attitude about this type of discrimination on the part of doctors. Contrary to the plurality's constrained view of the Secretary's justification for the regulations, the stated basis for those regulations reveals that the Secretary was cognizant of this more elusive discrimination. For example, the evidence cited most extensively by the Secretary in his initial proposal of these regulations was a study of attitudes of practicing and teaching pediatricians and pediatric surgeons. See (citing Shaw, Randolph, & Manard, Ethical Issues in Pediatric Surgery: A National Survey of Pediatricians and Pediatric Surgeons, 60 Pediatrics 588 (1977)). This study indicated that a substantial number of these doctors (76.8% of pediatric surgeons and 49.5% of pediatricians) *660 would "acquiesce in parents' decision to refuse consent for surgery in a newborn with intestinal atresia if the infant also had Down's syndrome." It also indicated that a substantial minority (23.6% of pediatric surgeons and 13.2% of pediatricians) would in fact encourage parents to refuse consent to surgery in this situation and that only a small minority (3.4% of pediatric surgeons and 15.8% of pediatricians) would attempt to get a court order mandating surgery if the parents refused consent. In comparison, only a small minority (7.9% of pediatric surgeons and 2.6% of pediatricians) would acquiesce in parental refusal to treat intestinal atresia in an infant with no other anomaly. And a large majority (78.3% of pediatric surgeons and 88.4% of pediatricians) would try to get a court order directing surgery if parental consent were withheld for treatment of a treatable malignant tumor. The Secretary thus recognized that there was evidence that doctors would act differently in terms of attempts to affect or override parental decisions depending on whether the infant was handicapped. Based on this evidence, the Secretary conceded that "[t]he
|
Justice White
| 1,986 | 6 |
dissenting
|
Bowen v. American Hospital Assn.
|
https://www.courtlistener.com/opinion/111685/bowen-v-american-hospital-assn/
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handicapped. Based on this evidence, the Secretary conceded that "[t]he full extent of discriminatory and life-threatening practices toward handicapped infants is not yet known" but concluded "that for even a single infant to die due to lack of an adequate notice and complaint procedure is unacceptable." Thus, the Secretary promulgated the regulations at issue here. These regulations, in relevant part, require that a notice of the federal policies against discrimination on the basis of handicap be posted in a place where a hospital's health care professionals will see it. This requirement is, as the Secretary concluded, "[c]onsistent with the Department's intent to target the notice to nurses and other health care professionals." App. 25. The notice requirement, therefore, may reasonably be read as aimed at fostering an awareness by health care professionals of their responsibility not to act in a discriminatory manner with respect to medical treatment decisions for handicapped infants. *661 The second requirement of the regulations, that state agencies provide mechanisms for requiring and reporting medical neglect of handicapped children, is also consistent with the Secretary's focus on discrimination in the form of discriminatory reporting.[13] I therefore perceive a rational connection between the facts found by the Secretary and the regulatory choice made. The Secretary identified an existing practice that there was reason to believe resulted from discrimination on the basis of handicap. Given this finding, the amorphous nature of much of the possible discrimination, the Secretary's profession that the regulations are appropriate no matter how limited the problem,[14] and the focus of the regulations on loci where unlawful discrimination seems most likely to occur and on persons likely to be responsible for it, I conclude that these regulations are not arbitrary and capricious and that the Court errs in striking them down on that basis. Although the Secretary's path here may be marked with " `less than ideal clarity,' " we will uphold such a decision " `if the agency's path may reasonably be discerned.' " Motor Vehicles Mfrs. Assn., 463 U. S., at ). The plurality also objects to the regulations' requirement concerning the state protective agencies' reporting procedures *662 on another ground. Specifically, the plurality finds that this requirement is in fact a substantive prescription rather than a prohibition of discrimination. The plurality bases this conclusion on the fact that the regulation sets forth specific procedures that must be adopted by state agencies. The plurality's conclusion disregards the Secretary's explanation for this requirement. In the preamble to the proposed regulations, the Secretary explicitly stated: "The Department has determined that under every state's law, failure of
|
Justice White
| 1,986 | 6 |
dissenting
|
Bowen v. American Hospital Assn.
|
https://www.courtlistener.com/opinion/111685/bowen-v-american-hospital-assn/
|
Department has determined that under every state's law, failure of parents to provide necessary, medically indicated care to a child is either explicitly cited as grounds for action by the state to compel treatment or is implicitly covered by the state statute. These state statutes also provide for appropriate administrative and judicial enforcement authorities to prevent such instances of medical neglect, including requirements that medical personnel report suspected cases to the state child protective services agency, agency access to medical files, immediate investigations and authority to compel treatment." This finding was repeated in the statement accompanying the final regulations: "Although there are some variations among state child protective statutes, all have the following basic elements: a requirement that health care providers report suspected cases of child abuse or neglect, including medical neglect; a mechanism for timely receipt of such reports; a process for administrative inquiry and investigation to determine the facts; and the authority and responsibility to seek an appropriate court order to remedy the apparent abuse and neglect, if it is found to exist." The regulations, in turn, require that the State provide these same services with respect to medical neglect of handicapped infants. See 45 CFR 84.55(c) (1985). The only *663 additional requirements imposed by the regulations involve provisions enabling the Department itself to review for compliance with the nondiscrimination requirements. Consequently, the regulations simply track the existing state procedures found to exist by the Secretary, requiring that funded state agencies provide those same procedures for handicapped children. The fact that the regulations specify the procedures that are necessary to ensure an absence of discrimination and do not instead speak in "nondiscrimination" terms is irrelevant. The substance of the requirement is nondiscrimination. The plurality's conclusion in this regard, however, apparently rests on a determination that implementation of a nondiscrimination mandate may be accomplished in only one form even if the same result may be accomplished by another route. See ante, at 640, n. 26. I would not elevate regulatory form over statutory substance in this manner. In sum, the plurality's determination that the regulations were inadequately supported and explained as a matter of administrative law does not withstand examination of the Secretary's discussion of the underlying problem and of the contours of the regulations themselves. IV My disagreement with the plurality in this case does not end here, however. For even under its chosen rationale, I find its ultimate conclusion dubious. Having assiduously restricted its discussion to the validity of the regulations only, the plurality ends up concluding expansively that not only the regulations but also other
|
Justice White
| 1,986 | 6 |
dissenting
|
Bowen v. American Hospital Assn.
|
https://www.courtlistener.com/opinion/111685/bowen-v-american-hospital-assn/
|
concluding expansively that not only the regulations but also other investigations taken by the Secretary independent of the regulations are invalid. Thus, the Court apparently enjoins the Secretary's on-site investigations as well as "the regulations which purport to authorize a continuation of them." Ante, at 647. And the plurality rests this action on the conclusion that the lower courts "correctly held that these investigative actions were not authorized by the statute." *664 I am at a loss to understand the plurality's reasoning in this respect. In construing the judgment below, the plurality appears to conclude that, although the injunction entered by the District Court and affirmed by the Court of Appeals did not purport to prohibit all actions by the Secretary under the statute, the injunction did in fact extend beyond merely these particular regulations. Thus, the plurality indicates that the judgment below applied as well to actions that "resemble," "parallel," or are "along [the] lines [of]" the regulations. Ante, at 625-626, n. 11. The plurality further defines what actions it believes the Court of Appeals and District Court contemplated: "[T]he injunction forbids continuation or initiation of regulatory and investigative activity directed at instances in which parents have refused consent to treatment and, if the Secretary were to undertake such action, efforts to seek compliance with affirmative requirements imposed on state child protective services agencies." Ante, at 625, n. 11. Aside from the fact that I see absolutely nothing in either the District Court's or the Court of Appeals' judgment that would support a constrained reading of the broadly phrased relief awarded by the District Court and affirmed without modification by the Court of Appeals,[15] I have some doubt as to how different the Court's holding today is from a holding that 504 gives HHS no authority whatsoever over decisions to treat handicapped infants. The plurality's lack of coherence on this crucial point raises substantial doubts as to the reach of the holding and as to the basis for that holding. Finally, I am puzzled as to how and why the plurality's determination that the regulations are invalid because they are arbitrary and capricious extends to other actions not taken under the regulations. The plurality apparently would enjoin all enforcement actions by the Secretary in situations in which parents have refused to consent to treatment. See ante, at 625-626, n. 11. Yet it is not clear to me that the *665 plurality's basis for invalidating these regulations would extend to all such situations. I do not see, for example, why the plurality's finding that the Secretary did not adequately support
|
Justice White
| 1,986 | 6 |
dissenting
|
Bowen v. American Hospital Assn.
|
https://www.courtlistener.com/opinion/111685/bowen-v-american-hospital-assn/
|
the plurality's finding that the Secretary did not adequately support his conclusion that failures to report refusals to treat likely result from discrimination means that such a conclusion will never be justified. The Secretary might be able to prove that a particular hospital generally fails to report nontreatment of handicapped babies for a specific treatment where it reports nontreatment of nonhandicapped babies for the same treatment. In essence, a determination that these regulations were inadequately supported factually would not seem to be properly extended beyond actions taken pursuant to these regulations: The fact that the Secretary has not adequately justified generalized action under the regulations should not mean that individualized action in appropriate circumstances is precluded. V In sum, the plurality today mischaracterizes the judgment below and, based on that mischaracterization, is sidetracked from the straightforward issue of statutory construction that this case presents. The plurality incorrectly resolves an issue that was not fully addressed by the parties, gives no guidance to the Secretary or the other parties as to the proper construction of the governing statute, and fails adequately to explain the precise scope of the holding or how that holding is supported under the plurality's chosen rationale. From this misguided effort, I dissent.
|
Justice Brennan
| 1,982 | 13 |
majority
|
Connecticut v. Teal
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https://www.courtlistener.com/opinion/110751/connecticut-v-teal/
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We consider here whether an employer sued for violation of Title VII of the Civil Rights Act of 1964[1] may assert a "bottom-line" theory of defense. Under that theory, as asserted in this case, an employer's acts of racial discrimination in promotions effected by an examination having disparate impact would not render the employer liable for the racial discrimination suffered by employees barred from promotion if the "bottom-line" result of the promotional process was an appropriate racial balance. We hold that the "bottom line" does not preclude respondent employees from establishing a prima facie case, nor does it provide petitioner employer with a defense to such a case. I Four of the respondents, Winnie Teal, Rose Walker, Edith Latney, and Grace Clark, are black employees of the Department of Income Maintenance of the State of Connecticut.[2]*443 Each was promoted provisionally to the position of Welfare Eligibility Supervisor and served in that capacity for almost two years. To attain permanent status as supervisors, however, respondents had to participate in a selection process that required, as the first step, a passing score on a written examination. This written test was administered on December 2, 197, to 329 candidates. Of these candidates, 4 identified themselves as black and 259 identified themselves as white. The results of the examination were announced in March 1979. With the passing score set at 65,[3] 54.17 percent of the identified black candidates passed. This was approximately 6 percent of the passing rate for the identified white candidates.[4] The four respondents were among the blacks who failed the examination, and they were thus excluded *444 from further consideration for permanent supervisory positions. In April 1979, respondents instituted this action in the United District Court for the District of Connecticut against petitioners, the State of Connecticut, two state agencies, and two state officials. Respondents alleged, inter alia, that petitioners violated Title VII by imposing, as an absolute condition for consideration for promotion, that applicants pass a written test that excluded blacks in disproportionate numbers and that was not job related. More than a year after this action was instituted, and approximately one month before trial, petitioners made promotions from the eligibility list generated by the written examination. In choosing persons from that list, petitioners considered past work performance, recommendations of the candidates' supervisors and, to a lesser extent, seniority. Petitioners then applied what the Court of Appeals characterized as an affirmative-action program in order to ensure a significant number of minority supervisors.[5] Forty-six persons were promoted to permanent supervisory positions, 11 of whom were black and 35 of
|
Justice Brennan
| 1,982 | 13 |
majority
|
Connecticut v. Teal
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https://www.courtlistener.com/opinion/110751/connecticut-v-teal/
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supervisory positions, 11 of whom were black and 35 of whom were white. The overall result of the selection process was that, of the 4 identified black candidates who participated in the selection process, 22.9 percent were promoted and of the 259 identified white candidates, 13.5 percent were promoted.[6] It is this "bottom-line" result, more favorable to blacks than to whites, that petitioners urge should be adjudged to be a complete defense to respondents' suit. After trial, the District Court entered judgment for petitioners. App. to Pet. for Cert. 1a. The court treated respondents' claim as one of disparate impact under Albemarle Paper and However, the court found that, although the comparative passing rates for the examination indicated a prima facie case of adverse impact upon minorities, the result of the entire hiring process reflected no such adverse Holding that these "bottom-line" percentages precluded the finding of a Title VII violation, the court held that the employer was not required to demonstrate that the promotional examination was job related. App. to Pet. for Cert. 22a-24a, 26a. The United Court of Appeals for the Second Circuit reversed, holding that the District Court erred in ruling that the result of the written examination alone were insufficient to support a prima facie case of disparate impact in violation of Title VII. The Court of Appeals stated that where "an identifiable pass-fail barrier denies an employment opportunity to a disproportionately large number of minorities and prevents them from proceeding to the next step in the selection process," that barrier must be shown to be job related. We granted certiorari, and now affirm. II A We must first decide whether an examination that bars a disparate number of black employees from consideration for promotion, and that has not been shown to be job related, presents a claim cognizable under Title VII. Section 703 (a)(2) of Title VII provides in pertinent part: "It shall be an unlawful employment practice for an employer "(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as *446 an employee, because of such individual's race, color, religion, sex, or national origin." as amended, 42 U.S. C. 2000e-2(a)(2). Respondents base their claim on our construction of this provision in Prior to the enactment of Title VII, the Duke Power restricted its black employees to the labor department. Beginning in 1965, the company required all employees who desired a transfer out of the labor department to have either
|
Justice Brennan
| 1,982 | 13 |
majority
|
Connecticut v. Teal
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https://www.courtlistener.com/opinion/110751/connecticut-v-teal/
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a transfer out of the labor department to have either a high school diploma or to achieve a passing grade on two professionally prepared aptitude tests. New employees seeking positions in any department other than labor had to possess both a high school diploma and a passing grade on these two examinations. Although these requirements applied equally to white and black employees and applicants, they barred employment opportunities to a disproportionate number of blacks. While there was no showing that the employer had a racial purpose or invidious intent in adopting these requirements, this Court held that they were invalid because they had a disparate impact and were not shown to be related to job performance: "[Title VII] proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited." and its progeny have established a three-part analysis of disparate-impact claims. To establish a prima facie case of discrimination, a plaintiff must show that the facially neutral employment practice had a significantly discriminatory If that showing is made, the employer must then demonstrate that "any given requirement [has] a manifest relationship to the employment in question," in order to *447 avoid a finding of discrimination. Even in such a case, however, the plaintiff may prevail, if he shows that the employer was using the practice as a mere pretext for discrimination. See Albemarle Paper ;[7] recognized that in enacting Title VII, Congress required "the removal of artificial, arbitrary, and unnecessary barriers to employment" and professional development that had historically been encountered by women and blacks as well as other See also [] McDonnell Douglas explained that " was rightly concerned that childhood deficiencies in the education and background of minority citizens, resulting from forces beyond their control, not be allowed to work a cumulative and invidious burden on such citizens for the remainder of their lives." *44 Petitioners' examination, which barred promotion and had a discriminatory impact on black employees, clearly falls within the literal language of 703(a)(2), as interpreted by The statute speaks, not in terms of jobs and promotions, but in terms of limitations and classifications that would deprive any individual of employment opportunities.[9] A disparate-impact claim reflects the language of 703(a)(2) and Congress' basic objectives in enacting that statute: "to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees."
|
Justice Brennan
| 1,982 | 13 |
majority
|
Connecticut v. Teal
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https://www.courtlistener.com/opinion/110751/connecticut-v-teal/
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favor an identifiable group of white employees over other employees." -430 When an employer uses a non-job-related barrier in order to deny a minority or woman applicant employment or promotion, and that barrier has a significant adverse effect on minorities or women, then the applicant has been deprived of an employment opportunity "because of race, color, religion, sex, or national origin." In other words, 703(a)(2) prohibits discriminatory "artificial, arbitrary, and unnecessary barriers to employment," that "limit or classify applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities." (Emphasis added.) Relying on 703(a)(2), explicitly focused on employment "practices, procedures, or tests," that deny equal employment "opportunity," We concluded that Title VII prohibits "procedures or testing mechanisms that operate as `built-in headwinds' for minority *449 groups." We found that Congress' primary purpose was the prophylactic one of achieving equality of employment "opportunities" and removing "barriers" to such equality. See Albemarle Paper v. The examination given to respondents in this case surely constituted such a practice and created such a barrier. Our conclusion that 703(a)(2) encompasses respondents' claim is reinforced by the terms of Congress' 1972 extension of the protections of Title VII to state and municipal employees. See n. Although Congress did not explicitly consider the viability of the defense offered by the state employer in this case, the 1972 amendments to Title VII do reflect Congress' intent to provide state and municipal employees with the protection that Title VII, as interpreted by had provided to employees in the private sector: equality of opportunity and the elimination of discriminatory barriers to professional development. The Committee Reports and the floor debates stressed the need for equality of opportunity for minority applicants seeking to obtain governmental positions. E. g., S. Rep. No. 92-415, p. 10 ; 11 Cong. Rec. 115 (1972) Congress voiced its concern about the widespread use by state and local governmental agencies of "invalid selection techniques" that had a discriminatory S. Rep. No. 92-415, ; H. R. Rep. No. 92-23, p. 17 ; 117 Cong. Rec. 31961 (remarks of Rep. Perkins).[10] *450 The decisions of this Court following also support respondents' claim. In considering claims of disparate impact under 703(a)(2) this Court has consistently focused on employment and promotion requirements that create a discriminatory bar to opportunities. This Court has never read 703(a)(2) as requiring the focus to be placed instead on the overall number of minority or female applicants actually hired or promoted. Thus found that minimum statutory height and weight requirements for correctional counselors were the sort of arbitrary barrier
|
Justice Brennan
| 1,982 | 13 |
majority
|
Connecticut v. Teal
|
https://www.courtlistener.com/opinion/110751/connecticut-v-teal/
|
requirements for correctional counselors were the sort of arbitrary barrier to equal employment opportunity for women forbidden by Title VII. Although we noted in passing that women constituted 36.9 percent of the labor force and only 12.9 percent of correctional counselor positions, our focus was not on this "bottom line." We focused instead on the disparate effect that the minimum height and weight standards had on applicants: classifying far more women than men as ineligible for employment. -330, and n. 12. Similarly, in Albemarle Paper v. the action was remanded to allow the employer to attempt to show that the tests that he had given to his employees for promotion were job related. We did not suggest that by promoting a sufficient number of the black employees who passed the examination, the employer could avoid this burden. See See also New York Transit 440 U.S. 56, 54 *451 In short, the District Court's dismissal of respondents' claim cannot be supported on the basis that respondents failed to establish a prima facie case of employment discrimination under the terms of 703(a)(2). The suggestion that disparate impact should be measured only at the bottom line ignores the fact that Title VII guarantees these individual respondents the opportunity to compete equally with white workers on the basis of job-related criteria. Title VII strives to achieve equality of opportunity by rooting out "artificial, arbitrary, and unnecessary" employer-created barriers to professional development that have a discriminatory impact upon individuals. Therefore, respondents' rights under 703(a)(2) have been violated, unless petitioners can demonstrate that the examination given was not an artificial, arbitrary, or unnecessary barrier, because it measured skills related to effective performance in the role of Welfare Eligibility Supervisor. B The United in its brief as amicus curiae, apparently recognizes that respondents' claim in this case falls within the affirmative commands of Title VII. But it seeks to support the District Court's judgment in this case by relying on the defenses provided to the employer in 703(h).[11] Section 703(h) provides in pertinent part: "Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because *452 of race, color, religion, sex or national origin." 7 Stat. 257, as amended, 42 U.S. C. 2000e-2(h). The Government argues that the test administered by the petitioners was not "used to discriminate" because it did not actually deprive disproportionate numbers
|
Justice Brennan
| 1,982 | 13 |
majority
|
Connecticut v. Teal
|
https://www.courtlistener.com/opinion/110751/connecticut-v-teal/
|
to discriminate" because it did not actually deprive disproportionate numbers of blacks of promotions. But the Government's reliance on 703(h) as offering the employer some special haven for discriminatory tests is misplaced. We considered the relevance of this provision in After examining the legislative history of 703(h), we concluded that Congress, in adding 703(h), intended only to make clear that tests that were job related would be permissible despite their disparate -436. As the Court recently confirmed, 703 (h), which was introduced as an amendment to Title VII on the Senate floor, "did not alter the meaning of Title VII, but `merely clarifie[d] its present intent and effect.' " American Tobacco v. Patterson, (192), quoting 110 Cong. Rec. 12723 (1964) (remarks of Sen. Humphrey). A non-job-related test that has a disparate racial impact, and is used to "limit" or "classify" employees, is "used to discriminate" within the meaning of Title VII, whether or not it was "designed or intended" to have this effect and despite an employer's efforts to compensate for its discriminatory effect. See In sum, respondents' claim of disparate impact from the examination, a pass-fail barrier to employment opportunity, states a prima facie case of employment discrimination under 703(a)(2), despite their employer's nondiscriminatory "bottom line," and that "bottom line" is no defense to this prima facie case under 703(h). III Having determined that respondents' claim comes within the terms of Title VII, we must address the suggestion of petitioners and some amici curiae that we recognize an exception, either in the nature of an additional burden on plaintiffs *453 seeking to establish a prima facie case or in the nature of an affirmative defense, for cases in which an employer has compensated for a discriminatory pass-fail barrier by hiring or promoting a sufficient number of black employees to reach a nondiscriminatory "bottom line." We reject this suggestion, which is in essence nothing more than a request that we redefine the protections guaranteed by Title VII.[12] Section 703(a)(2) prohibits practices that would deprive or tend to deprive "any individual of employment opportunities." The principal focus of the statute is the protection of the individual employee, rather than the protection of the minority *454 group as a whole. Indeed, the entire statute and its legislative history are replete with references to protection for the individual employee. See, e. g., 703(a)(1), (b), (c), 704(a), -257, as amended, 42 U.S. C. 2000e-2(a)(1), (b), (c), 2000e-3(a); 110 Cong. Rec. 7213 (1964) (interpretive memorandum of Sens. Clark and Case) ("discrimination is prohibited as to any individual"); at 921 ("Every man must be judged according
|
Justice Brennan
| 1,982 | 13 |
majority
|
Connecticut v. Teal
|
https://www.courtlistener.com/opinion/110751/connecticut-v-teal/
|
any individual"); at 921 ("Every man must be judged according to his ability. In that respect, all men are to have an equal opportunity to be considered for a particular job"). In suggesting that the "bottom line" may be a defense to a claim of discrimination against an individual employee, petitioners and amici appear to confuse unlawful discrimination with discriminatory intent. The Court has stated that a non-discriminatory "bottom line" and an employer's good-faith efforts to achieve a nondiscriminatory work force, might in some cases assist an employer in rebutting the inference that particular action had been intentionally discriminatory: "Proof that [a] work force was racially balanced or that it contained a disproportionately high percentage of minority employees is not wholly irrelevant on the issue of intent when that issue is yet to be decided." Furnco Construction 43 U.S. 567, 50 (197). See also But resolution of the factual question of intent is not what is at issue in this case. Rather, petitioners seek simply to justify discrimination against respondents on the basis of their favorable treatment of other members of respondents' racial group. Under Title VII, "[a] racially balanced work force cannot immunize an employer from liability for specific acts of discrimination." Furnco Construction 43 U. S., at 579. "It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether *455 members of the applicant's race are already proportionately represented in the work force. See ; McDonald v. Santa Fe Trail Transportation" It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees' group. We recognized in Los Angeles Dept. of Water & (197), that fairness to the class of women employees as a whole could not justify unfairness to the individual female employee because the "statute's focus on the individual is unambiguous." at 70. Similarly, in we recognized that a rule barring employment of all married women with preschool children, if not a bona fide occupational qualification under 703(e), violated Title VII, even though female applicants without preschool children were hired in sufficient numbers that they constituted 75 to 0 percent of the persons employed in the position plaintiff sought. Petitioners point out that Furnco, Manhart, and Phillips involved facially discriminatory policies, while the claim in the instant case is one of discrimination from a facially neutral policy. The fact remains, however, that irrespective of the form taken
|
Justice Brennan
| 1,982 | 13 |
majority
|
Connecticut v. Teal
|
https://www.courtlistener.com/opinion/110751/connecticut-v-teal/
|
The fact remains, however, that irrespective of the form taken by the discriminatory practice, an employer's treatment of other members of the plaintiffs' group can be "of little comfort to the victims of discrimination." Title VII does not permit the victim of a facially discriminatory policy to be told that he has not been wronged because other persons of his or her race or sex were hired. That answer is no more satisfactory when it is given to victims of a policy that is facially neutral but practically discriminatory. Every individual employee is protected against both discriminatory treatment *456 and "practices that are fair in form, but discriminatory in operation." 401 U. S., Requirements and tests that have a discriminatory impact are merely some of the more subtle, but also the more pervasive, of the "practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens." McDonnell Douglas 411 U. S., at 00. IV In sum, petitioners' nondiscriminatory "bottom line" is no answer, under the terms of Title VII, to respondents' prima facie claim of employment discrimination. Accordingly, the judgment of the Court of Appeals for the Second Circuit is affirmed, and this case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.
|
Justice Douglas
| 1,971 | 10 |
dissenting
|
MacKey v. United States
|
https://www.courtlistener.com/opinion/108302/mackey-v-united-states/
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I had assumed that all criminal and civil decisions involving constitutional defenses which go in favor of the defendant were necessarily retroactive. That is to say, the Constitution has from Chief Justice Jay's time been retroactive,[*] for there were no decisions on the points prior thereto. and exonerated defendants who, when they failed to file returns, were not by reason of United entitled to a constitutional immunity. Why Marchetti and Grosso are entitled to relief and Mackey is not, is a mystery. It is said that Mackey's gambling return, "like physical evidence seized in violation of a new interpretation of the Fourth Amendment, is concededly relevant and probative even though obtained by *714 the Government through means since defined by this Court as constitutionally objectionable." The same could be said of Marchetti and Grosso. Yet their convictions were reversed. I could understand today's decision if Marchetti and Grosso had announced only a prospective rule applicable to all like defendants. But when the defendants in those cases are given the benefit of a new constitutional rule forged by the Court, it is not comprehensible, if justice rather than the fortuitous circumstances of the time of the trial is the standard, why all victims of the old unconstitutional rule should not be treated equally. I can find nothing in the Constitution that authorizes some constitutional rules to be prospective and others to be retroactive. The majority often says the test is whether a new rule affects the integrity of the factfinding process, Yet even that test is not applied when the majority thinks that the impact of the new rule, if applied with due regard to the Equal Protection Clause, would be "devastating." The Constitution grants this Court no such legislative powers. My views have been expressed in and and I adhere to them. I would continue to construe all constitutional safeguards "strictly."
|
Justice Stevens
| 1,986 | 16 |
dissenting
|
Allen v. Illinois
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https://www.courtlistener.com/opinion/111745/allen-v-illinois/
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Paragraph of the Illinois Criminal Code authorizes a special procedure for the involuntary commitment of individuals *376 found to be "sexually dangerous persons."[1] In many respects, the proceeding is virtually identical to Illinois' proceeding for prosecution of sex-related crimes. When the criminal law casts so long a shadow on a putatively civil proceeding, I think it clear that the procedure must be deemed a "criminal case" within the meaning of the Fifth Amendment.[2] I As the Court reaffirms today, the fact that a State attaches a "civil" label to a proceeding is not dispositive. Ante, at 369. Such a label cannot change the character of a criminal proceeding. In re Gault, Moreover, the words "criminal case" in the Fifth Amendment have been consistently construed to encompass certain proceedings that have both civil and criminal characteristics.[3] And, of course, a State's duty to respect the commands in the Fifth Amendment cannot be avoided by the names it applies to its procedures or to the persons whom it accuses of wrongful conduct. It is the substance of the Illinois procedure, rather than its title, that is relevant to our inquiry.[4] Neither *377 the word "civil" nor the unsettling term applied by the State "sexually dangerous person" should be permitted to obscure our analysis. The impact of an adverse judgment against an individual deemed to be a "sexually dangerous person" is at least as serious as a guilty verdict in a typical criminal trial. In we referred to the potentially indefinite commitment to the "sex deviate facility" located in the Wisconsin State Prison, as "a massive curtailment of liberty." In a case arising under the Illinois statute we review today, United States ex rel. the Court of Appeals for the Seventh Circuit noted that the sexually-dangerous-person proceeding authorizes far longer imprisonment than a mere finding of guilt on an analogous criminal charge.[5] Moreover, the stigma associated with an adjudication as a "sexually dangerous person" is at least as great as that associated with most criminal convictions and "is certainly more damning than a finding of juvenile delinquency." The distinctive element of Illinois' "sexually dangerous person" proceeding, however, is its relationship to Illinois' criminal law. Quite simply, criminal law occupies a central role in the sexually-dangerous-person proceeding. Like the prosecution for a criminal offense, the procedure may only begin "when any person is charged with a criminal offense."[6]*378 Like the prosecution for a criminal offense, the decision whether to initiate the procedure is entrusted "to the Attorney General or to the State's Attorney of the county wherein such person is so charged."[7]
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